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THE HARVARD CLASSICS EDITED BY CHARLES W ELIOT LL D
AMERICAN HISTORICAL DOCUMENTS
1000-1904
WITH INTRODUCTIONS, NOTES AND ILLUSTRATIONS
DR ELIOT'S FIVE-FOOT SHELF OF BOOKS'
P F COLLIER & SON NEW YORK
Copyright, 1910 By p. F. Collier & Son
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Designed, Printed, and Bound at
Cfje Collier l^reM, J^cto gorb
CONTENTS
FAGI
The Voyages to Vinland (c. iooo) 5
The Letter of Columbus to Luis de Sant Angel An- nouncing His Discovery (1493) 22
Amerigo Vespucci's Account of His First Voyage (1497). 29
John Ca ,ot's Discovery of North America (1497) ... 47
First Charter of Virginia (1606) 51
The Mayflower Compact (1620) 62
The Fundamental Orders of Connecticut (1639) . . . 63
The Massachusetts Body of Liberties (1641) .... 70 Arbitrary Government Described and the Government of the Massachusetts Vindicated from that Aspersion,
BY John Winthrop (1644) 90
The Instrument of Government (1653) 113
A Healing Question, by Sir Henry Vane (1656) . . . 126
John Eliot's Brief Narrative (1670) 147
Declaration of Rights (1765) 157
The Declaration of Independence (1776) 160
The Mecklenburg Declaration of Independence (1775) . 166
Articles of Confederation (1777) 168
Articles of Capitulation, Yorktown (1781) 180
Treaty with Great Britain (1783) 185
Constitution of the United States (1787) 192
The Federalist, Nos. i and 2 (1787) 212
Opinion of Chief Justice Marshall, in the Case of
McCulloch vs. the State of Maryland (1819) . . 222
Washington's First Inaugural Address (1789) .... 241
Treaty with the Six Nations (1794) 246
Washington's Farewell Address (1796) 250
Treaty with France (Louisiana Purchase) (1803) . . 267
Treaty with Great Britain (End of War of 1812) (1814) 273 Arrangement as to the Naval Force to be Respectively
Maintained on the American Lakes (i&r7) . . . 283
'iC XLIU (l) 1
2 CONTENTS
PACK
Treaty with Spain (Acquisition of Florida) (1819) . . 286
The Monroe Doctrine (1823) 296
Webster-Ashburton Treaty with Great Britain (1842) 299
Treaty with Mexico (1848) 309
Fugitive Slave Act (1850) ZV
Lincoln's First Inaugural Address (1861) ...... 334
Emancipation Proclamation (1863) 344
Haskell's Account of the Battle of Gettysburg .... 347
Lincoln's Gettysburg Address (1863) 441
Proclamation of Amnesty (1863) 442
Lincoln's Letter to Mrs. Bixby (1864) 446
Terms of Lee's Surrender at Appomattox (1865) . . . 447
Lee's Farewell to his Army (1865) 449
Lincoln's Second Inaugural Address (1865) 450
Proclamation Declaring the Insurrection at an End
(1866) 453
Treaty with Russia (Alaska Purchase) (1867) ... 459
Annexation of the Hawaiian Islands (1898) .... 464
Recognition of the Independence of Cuba (1898) . . . 467 Treaty with Spain (Cession of Porto Rico and the
Philippines) (1898) 469
Convention Between the United States and the Re- public OF Panama (1904) 478
INTRODUCTORY NOTE
No final history of the United States of America has been written, or is' likely to be written. Research is constantly bring- ing to light new facts that correct details or modify the tradi- tional view of larger questions; and the most impartial historian is subject to personal or sectional bias which leads to his works' being regarded as imperfect by another generation, or as unfair by the people of parts of the country other than his ozmi. In such a series as the present, then, it is unwise to represent the story of the growth of this nation by the summary of any one scholar.
The alternative has been to place before the reader a selection of the most important documents which record in contemporary terms the great events in the history of the country. Beginning with the personal records of the earliest discoverers of the continent, the selection goes on to present the first attempts at organising a machinery of government made by the first settlers of the New England colonies; proceeds to the landmarks of the struggle for independence and the formation of the Constitution; shows the laying of the foundation of national policies and of the inter- pretation of the Constitution; indicates by the texts of the treaties themselves the acquisition of each successive increase of terri- tory; and reveals by the original state papers the main causes and effects of the wars in which the country has from time to time been engaged. Read in succession, these documents afford a condensed view of the political progress of the American people; freed from any prejudice save that which swayed the makers of the history themselves.
AMERICAN HISTORICAL DOCUMENTS
THE VOYAGES TO VINLAND
(c. looo)
[The following account of the discovery of North America by Leif Ericsson is contained in the "Saga of Eric the Red"; and the present translation is that made by A. M. Reeves from the version of the Saga in the Flateyar-hok, compiled by Jon Thordharson about 1387. The part of the coast where Leif landed is much in dispute, the most recent investigations tending to the southern part of the coast of Labrador, though many scholars believe Vinland to have been on the New England shore.]
Leif the Lucky Baptized
A FTER that sixteen winters had lapsed, from the time l\ when Eric the Red went to colonize Greenland, Leif, -*--^ Eric's son, sailed out from Greenland to Norway. He arrived in Drontheim in the autumn, when King Olaf Trygg- vason was come down from the North, out of Halagoland. Leif put into Nidaros with his ship, and set out at once to visit the king. King Olaf expounded the faith to him, as he did to other heathen men who came to visit him. It proved easy for the king to persuade Leif, and he was accordingly baptized, together with all of his shipmates. Leif remained throughout the winter with the king, by whom he was well entertained.
BiARNi Goes in Quest of Grm:nland
Heriulf was a son of Bard Heriulfsson. He was a kins- man of Ingolf, the first colonist. Ingolf allotted land to Heri- ulf between Vag and Reykianess, and he dwelt at first at Drepstokk. Heriulf's wife's name was Thorgerd, and their son, whose name was Biarni, was a most promising man. He
5
5 AMERICAN HISTORICAL DOCUMENTS
formed an inclination for voyaging while he was still young, and he prospered both in property and public esteem. It was his custom to pass his winters alternately abroad and with his father. Biarni soon became the owner of a trading-ship; and during the last winter that he spent in Norway [his father] Heriulf determined to accompany Eric on his voyage to Greenland, and made his preparations to give up his farm. Upon the ship with Heriulf was a Christian man from the Hebrides, he it was who composed the Sea-Roller's Song, which contains this stave:
** Mine adventure to the Meek One,
Monk-heart-searcher, I commit now; He, who heaven's halls doth govern. Hold the hawk's-seat ever o*er me ! **
Heriulf settled at Heriulfsness, and was a most distinguished man. Eric the Red dwelt at Brattahlid, where he was held in the highest esteem, and all men paid him homage. These were Eric's children: Leif, Thorvald, and Thorstein, and a daughter whose name was Freydis ; she was wedded to a man named Thorvard, and they dwelt at Gardar, where the episco- pal seat now is. She was a very haughty woman, while Thor- vard was a man of little force of character, and Freydis had been wedded to him chiefly because of his wealth. At that time the people of Greenland were heathen.
Biarni arrived with his ship at Eyrar [in Iceland] in the summer of the same year, in the spring of which his father had sailed away. Biarni was much surprised when he heard this news, and would not discharge his cargo. His shipmates inquired of him what he intended to do, and he replied that it was his purpose to keep to his custom, and make his home for the winter with his father; "and I will take the ship to Greenland, if you will bear me company." They all replied that they would abide by his decision. Then said Biarni, " Our voyage must be regarded as foolhardy, seeing that no one of us has ever been in the Greenland Sea." Nevertheless, they put out to sea when they were equipped for the voyage, and sailed for three days, until the land was hidden by the water, and then the fair wind died out, and north winds arose, and fogs, and they knew not whither they were drift- ing, and thus it lasted for many " doegr." Then they saw the
AMERICAN HISTORICAL DOCUMENTS 7
sun again, and were able to determine the quarters of the heavens; they hoisted sail, and sailed that "doegr" through before they saw land. They discussed among themselves what land it could be, and Biarni said that he did not believe that it could be Greenland. They asked whether he wished to sail to this land or not. " It is my counsel" [said he] " to sail close to the land." They did so, and soon saw that the land was level, and covered with woods, and that there were small hillocks upon it. They left the land on their larboard, and let the sheet turn toward the land. They sailed for two " doegr" before they saw another land. They asked whether Biarni thought this was Greenland yet. He replied that he did not think this any more like Greenland than the for- mer, " because in Greenland there are said to be many great ice mountains." They soon approached this land, and saw that it was a flat and wooded country. The fair wind failed them then, and the crew took counsel together, and concluded that it would be wise to land there, but Biarni would not consent to this. They alleged that they were in need of both wood and water. " Ye have no lack of either of these," says Biarni, — a course, forsooth, which won him blame among his shipmates. He bade them hoist sail, which they did, and turn- ing the prow from the land they sailed out upon the high seas, with south-westerly gales, for three " dcegr," when they saw the third land; this land was high and mountainous, with ice mountains upon it. They asked Biarni then whether he would land there, and he replied that he was not disposed to do so, "because this land does not appear to me to offer any attractions." Nor did they lower their sail, but held their course off the land, and saw that it was an island. They left this land astern, and held out to sea with the same fair wind. The wind waxed amain, and Biarni directed them to reef, and not to sail at a speed unbefitting their ship and rigging. They sailed now for four " dcegr," when they saw the fourth land. Again they asked Biarni whether he thought this could be Greenland or not. Biarni answers, " This is likest Green- land, according to that which has been reported to me con- cerning it, and here we will steer to the land." They directed their course thither, and landed in the evening, below a cape upon which there was a boat, and there, upon this cape,
8 AMERICAN HISTORICAL DOCUMENTS
dwelt Heriulf, Biarni's father, whence the cape took its name, and was afterward called Heriulfsness. Biarni now went to his father, gave up his voyaging, and remained with his father while Heriulf lived, and continued to live there after his father.
Here Begins the Brief History of the Greenlanders
Next to this is now to be told how Biarni Heriulf sson came out from Greenland on a visit to Earl Eric, by whom he was well received. Biarni gave an account of his travels [upon the occasion] when he saw the lands, and the people thought that he had been lacking in enterprise, since he had no report to give concerning these countries ; and the fact brought him reproach. Biarni was appointed one of the Earl's men, and went out to Greenland the following summer. There was now much talk about voyages of discovery. Leif, the son of Eric the Red, of Brattahlid, visited Biarni Heriulfsson and bought a ship of him, and collected a crew, until they formed altogether a company of thirty-five men. Leif invited his father, Eric, to become the leader of the expedition, but Eric declined, saying that he was then stricken in years, and adding that he was less able to endure the exposure of sea life than he had been. Leif replied that he would neverthe- less be the one who would be most apt to bring good luck, and Eric yielded to Leif's solicitation, and rode from home when they were ready to sail. When he was but a short distance from the ship, the horse which Eric was riding stumbled, and he was thrown from his back and wounded his foot, whereupon he exclaimed, " It is not designed for me to discover more lands than the one in which we are now living, nor can we now continue longer together." Eric returned home to Brattahlid, and Leif pursued his way to the ship with his companions, thirty-five men. One of the company was a German, named Tyrker. They put the ship in order; and, when they were ready, they sailed out to sea, and found first that land which Biarni and his shipmates found last. They sailed up to the land, and cast anchor, and launched a boat, and went ashore, and saw no grass there. Great ice moun- tains lay inland back from the sea, and it was as a [tableland
AMERICAN HISTORICAL DOCUMENTS 9
of] flat rock all the way from the sea to the ice mountains; and the country seemed to them to be entirely devoid of good qualities. Then said Leif, " It has not come to pass with us in regard to this land as with Biarni, that we have not gone upon it. To this country I will now give a name, and call it Helluland." They returned to the ship, put out to sea, and found a second land. They sailed again to the land, and came to anchor, and launched the boat, and went ashore. This was a level wooded land; and there were broad stretches of white sand where they went, and the land was level by the sea. Then said Leif, "This land shall have a name after its nature; and we will call it Markland." They returned to the ship forthwith, and sailed away upon the main with north-east winds, and were out two " doegr" before they sighted land. They sailed toward this land, and came to an island which lay to the northward off the land. There they went ashore and looked about them, the weather being fine, and they observed that there was dew upon the grass, and it so happened that they touched the dew with their hands, and touched their hands to their mouths, and it seemed to them that they had never before tasted anything so sweet as this. They went aboard their ship again and sailed into a certain sound, which lay between the island and a cape, which jutted out from the land on the north, and they stood in westering past the cape. At ebb-tide there were broad reaches of shallow water there, and they ran their ship aground there, and it was a long distance from the ship to the ocean ; yet were they so anxious to go ashore that they could not wait until the tide should rise under their ship, but hast- ened to the land, where a certain river flows out from a lake. As soon as the tide rose beneath their ship, however, they took the boat and rowed to the ship, which they conveyed up the river, and so into the lake, where they cast anchor and carried their hammocks ashore from the ship, and built them- selves booths there. They afterward determined to establish themselves there for the winter, and they accordingly built ? large house. There was no lack of salmon there either in the river or in the lake, and larger salmon than they had ever seen before. The country thereabouts seemed to be possessed of such good qualities that cattle would need no fodder there
10 AMERICAN HISTORICAL DOCUMENTS
during the winters. There was no frost there in the winters, and the grass withered but little. The days and nights there were of more nearly equal length than in Greenland or Iceland. On the shortest day of winter, the sun was up be- tween * eykarstad " and ** dagmalastad." When they had com- pleted their house, Leif said to his companions, " I propose now to divide our company into two groups, and to set about an exploration of the country. One-half of our party shall remain at home at the house, while the other half shall in- vestigate the land ; and they must not go beyond a point from which they can return home the same evening, and are not to separate [from each other]. Thus they did for a time. Leif, himself, by turns joined the exploring party, or re- mained behind at the house. Leif was a large and powerful man, and of a most imposing bearing, — a man of sagacity, and a very just man in all things.
Leif the Lucky Finds Men Upon a Skerry at Sea
It was discovered one evening that one of their company was missing ; and this proved to be Tyrker, the German. Leif was sorely troubled by this, for Tyrker had lived with Leif and his father for a long time, and had been very devoted to Leif when he was a child. Leif severely reprimanded his companions, and prepared to go in search of him, taking twelve men with him. They had proceeded but a short dis- tance from the house, when they were met by Tyrker, whom they received most cordially. Leif observed at once that his foster-father was in lively spirits. Tyrker had a prominent forehead, restless eyes, small features, was diminutive in stature, and rather a sorry-looking individual withal, but was, nevertheless, a most capable handicraftsman. Leif addressed him, and asked, " Wherefore art thou so belated, foster- father mine, and astray from the others?'^ In the beginning Tyrker spoke for some time in German, rolling his eyes and grinning, and they could not understand him ; but after a time he addressed them in the Northern tongue : " I did not go much further [than you], and yet I have something of novelty to relate. I have found vines and grapes." " Is this indeed true, foster-father?" said Leif. " Of a certainty it is
AMERICAN HISTORICAL DOCUMENTS U
true," quoth he, " for I was born where there is no lack of either grapes or vines." They slept the night through, and on the morrow Leif said to his shipmates, " We will now divide our labors, and each day will either gather grapes or cut vines and fell trees, so as to obtain a cargo of these for my ship." They acted upon this advice, and it is said that their after-boat was filled with grapes. A cargo sufficient for the ship was cut, and when the spring came they made their ship ready, and sailed away ; and from its products Leif gave the land a name, and called it Wineland. They sailed out to sea, and had fair winds until they sighted Greenland and the fells below the glaciers. Then one of the men spoke up and said, "Why do you steer the ship so much into the wind?'* Leif answers : " I have my mind upon my steering, but on other matters as well. Do ye not see anything out of the common ?" They replied that they saw nothing strange. " I do not know," says Leif, "whether it is a ship or a skerry that I see." Now they saw it, and said that it must be a skerry; but he was so much keener of sight than they that he was able to discern men upon the skerry. " I think it best to tack," says Leif, " so that we may draw near to them, that we may be able to render them assistance if they should stand in need of it; and, if they should not be peaceably dis- posed, wc shall still have better command of the situation than they." They approached the skerry, and, lowering their sail, cast anchor, and launched a second small boat, which they had brought with them. Tyrker inquired who was the leader of the party. He replied that his name was Thori, and that he was a Norseman; "but what is thy name?" Leif gave his name. " Art thou a son of Eric the Red of Brattahlid?" says he. Leif responded that he was. " It is now my wish," says Leif, "to take you all into my ship, and likewise so much of your possessions as the ship will hold." This offer was accepted, and [with their ship] thus laden they held away to Ericsfirth, and sailed until they arrived at Brattahlid. Having discharged the cargo, Leif invited Thori, with his wife, Gudrid, and three others, to make their home with him, and procured quarters for the other members of the crew, both for his own and Thori's men. Leif rescued fifteen per- sons from the skerry. He was afterwards called Leif the
12 AMERICAN HISTORICAL DOCUMENTS
Lucky. Leif had now goodly store both of property and honor. There was serious illness that winter in Thori's party, and Thori and a great number of his people died. Eric the Red also died that winter. There was now much talk about Leif's Wineland journey; and his brother, Thorvald, held that the country had not been sufficiently explored. Thereupon Leif said to Thorvald, " If it be thy will, brother, thou mayest go to Wineland with my ship ; but I wish the ship first to fetch the wood which Thori had upon the skerry." And so it was done.
Thorvald Goes to Wineland
Now Thorvald, with the advice of his brother, Leif, pre- pared to make this voyage with thirty men. They put their ship in order, and sailed out to sea; and there is no account of their voyage before their arrival at Leifs-booths in Wine- land. They laid up their ship there, and remained there quietly during the winter, supplying themselves with food by fishing. In the spring, however, Thorvald said that they should put their ship in order, and that a few men should take the after- boat, and proceed along the western coast, and explore [the region] thereabouts during the summer. They found it a fair, well-wooded country. It was but a short distance from the woods to the sea, and [there were] white sands, as well as great numbers of islands and shallows. They found neither dwelling of man nor lair of beast ; but in one of the westerly islands they found a wooden building for the shelter of grain. They found no other trace of human handiwork; and they turned back, and arrived at Leifs-booths in the autumn. The following summer Thorvald set out toward the east with the ship, and along the northern coast. They were met by a high wind off a certain promontory, and were driven ashore there, and damaged the keel of their ship, and were compelled to remain there for a long time and repair the injury to their vessel. Then said Thorvald to his companions, " I propose that we raise the keel upon this cape, and call it Keelness " ; and so they did. Then they sailed away to the eastward off the land and into the mouth of the adjoining firth and to a headland, which projected into the sea there, and which was
AMERICAN HISTORICAL DOCUMENTS 13
entirely covered with woods. They found an anchorage for their ship, and put out the gangway to the land ; and Thorvald and all of his companions went ashore. " It is a fair region here," said he ; " and here I should like to make my home." They then returned to the ship, and discovered on the sands, in beyond the headland, three mounds : they went up to these, and saw that they were three skin canoes with three men under each. They thereupon divided their party, and succeeded in seizing all of the men but one, who escaped with his canoe. They killed the eight men, and then ascended the headland again, and looked about them, and discovered within the firth certain hillocks, which they concluded must be habitations. They were then so overpowered with sleep that they could not keep awake, and all fell into a [heavy] slumber from which they were awakened by the sound of a cry uttered above them ; and the words of the cry were these : ''Awake, Thorvald, thou and all thy company, if thou wouldst save thy life; and board thy ship with all thy men, and sail with all speed from the land ! " A countless number of skin canoes then advanced toward them from the inner part of the firth, whereupon Thorvald exclaimed, " We must put out the war-boards on both sides of the ship, and defend ourselves to the best of our ability, but offer little attack." This they did; and the Skrellings, after they had shot at them for a time, fled precipitately, each as best he could. Thorvald then inquired of his men whether any of them had been wounded, and they informed him that no one of them had received a wound. "I have been wounded in my arm-pit," says he. " An arrow flew in between the gunwale and the shield, below my arm. Here is the shaft, and it will bring me to my end. I counsel you now to retrace your way with the utmost speed. But me ye shall convey to that headland which seemed to me to offer so pleasant a dwelling-place : thus it may be fulfilled that the truth sprang to my lips when I expressed the wish to abide there for a time. Ye shall bury me there, and place a cross at my head, and another at my feet, and call it Crossness forever after." At that time Christianity had obtained in Greenland: Eric the Red died, however, before [the introduc- tion of] Christianity.
Thorvald died; and, when they had carried out his injunc-
14 AMERICAN HISTORICAL DOCUMENTS
tions, they took their departure, and rejoined their compan- ions, and they told each other of the experiences which had befallen them. They remained there during the winter, and gathered grapes and wood with which to freight the ship. In the following spring they returned to Greenland, and arrived with their ship in Ericsfirth, where they were able to recount great tidings to Leif.
Thorstein Ericsson Dies in the Western Settlement
In the mean time it had come to pass in Greenland that Thorstein of Ericsfirth had married, and taken to wife Gudrid, Thorbrion's daughter, [she] who had been the spouse of Thori Eastman, as has been already related. Now Thor- stein Ericsson, being minded to make the voyage to Wine- land after the body of his brother, Thorvald, equipped the same ship, and selected a crew of twenty-five men of good size and strength, and taking with him his wife, Gudrid, when all was in readiness, they sailed out into the open ocean, and out of sight of land. They were driven hither and thither over the sea all that summer, and lost all reckoning; and at the end of the first week of winter they made the land at Lysufirth in Greenland, in the Western settlement. Thor- stein set out in search of quarters for his crew, and succeeded in procuring homes for all of his shipmates; but he and his wife were unprovided for, and remained together upon the ship for two or more days. At this time Christianity was still in its infancy in Greenland. [Here follows the account of Thorstein's sickness and death in the winter.] . . . When he had thus spoken, Thorstein sank back again ; and his body was laid out for burial, and borne to the ship. Thorstein, the master, faithfully performed all his promises to Gudrid. He sold his lands and live stock in the spring, and accompanied Gudrid to the ship, with all his possessions. He put the ship in order, procured a crew, and then sailed for Ericsfirth. The bodies of the dead were now buried at the church ; and Gudrid then went home to Leif at Brattahlid, while Thorstein the Swarthy made a home for himself on Ericsfirth, and remained there as long as he lived, and was looked upon as a very superior man.
AMERICAN HISTORICAL DOCUMENTS 15
Of the Wineland Voyages of Thorfinn and His Com- panions
That same summer a ship came from Norway to Greenland. The skipper's name was Thorfinn Karlsefni. He was a son of Thord Horsehead, and a grandson of Snorri,the son of Thord of Hofdi. Thorfinn Karlsefni, who was a very wealthy man, passed the winter at Brattahlid with Leif Ericsson. He very soon set his heart upon Gudrid, and sought her hand in mar- riage. She referred him to Leif for her answer, and was sub- sequently betrothed to him ; and their marriage was celebrated that same winter. A renewed discussion arose concerning a Wineland voyage ; and the folk urged Karlsefni to make the venture, Gudrid joining with the others. He determined to undertake the voyage, and assembled a company of sixty men and five women, and entered into an agreement with his ship- mates that they should each share equally in all the spoils of the enterprise. They took with them all kinds of cattle, as it was their intention to settle the country, if they could. Karl- sefni asked Leif for the house in Wineland; and he replied that he would lend it, but not give it. They sailed out to sea with the ship, and arrived safe and sound at Leif s-booths, and carried their hammocks ashore there. They were soon pro- vided with an abundant and goodly supply of food; for a whale of good size and quality was driven ashore there, and they secured it, and flensed it, and had then no lack of pro- visions. The cattle were turned out upon the land, and the males soon became very restless and vicious: they had brought a bull with them. Karlsefni caused trees to be felled and to be hewed into timbers wherewith to load his ship, and the wood was placed upon a cliff to dry. They gathered some- what of all of the valuable products of the land, — grapes, and all kinds of game and fish, and other good things. In the summer succeeding the first winter Skrellings were discov- ered. A great troop of men came forth from out the woods. The cattle were hard by, and the bull began to bellow and roar with a great noise, whereat the Skrellings were fright- ened, and ran away with their packs, wherein were gray furs, sables, and all kinds of peltries. They fled towards Karl-
16 AMERICAN HISTORICAL DOCUMENTS
sefni's dwelling, and sought to effect an entrance into the house ; but Karlsefni caused the doors to be defended [against them]. Neither [people] could understand the other's lan- guage. The Skrellings put down their bundles then, and loosed them, and offered their wares [for barter], and were especially anxious to exchange these for weapons ; but Karl- sefni forbade his men to sell their weapons, and, taking coun- sel with himself, he bade the women carry out milk to the Skrellings, which they no sooner saw than they wanted to buy it, and nothing else. Now the outcome of the Skrellings' trad- ing was that they carried their wares away in their stomachs, while they left their packs and peltries behind with Karlsefni and his companions, and, having accomplished this [ex- change], they went away. Now it is to be told that Karlsefni caused a strong wooden palisade to be constructed and set up around the house. It was at this time that Gudrid, Karlsefni's wife, gave birth to a male child, and the boy was called Snorri. In the early part of the second winter the Skrellings came to them again, and these were now much more numer- ous than before, and brought with them the same wares as at first. Then said Karlsefni to the women, " Do ye carry out now the same food which proved so profitable before, and nought else." When they saw this, they cast their packs in over the palisade. Gudrid was sitting within, in the doorway, beside the cradle of her infant son, Snorri, when a shadow fell upon the door, and a woman in a black namkirtle entered. She was short in stature, and wore a fillet about her head; her hair was of a light chestnut color, and she was pale of hue, and so big-eyed that never before had eyes so large been seen in a human skull. She went up to where Gudrid was seated, and said, "What is thy name?" "My name is Gudrid, but what is thy name?" "My name is Gudrid," says she. The housewife Gudrid motioned her with her hand to a seat be- side her ; but it so happened that at that very instant Gudrid heard a great crash, whereupon the woman vanished, and at that same moment one of the Skrellings, who had tried to seize their weapons, was killed by one of Karlsefni's follow- ers. At this the Skrellings fled precipitately, leaving their garments and wares behind them ; and not a soul, save Gudrid alone, beheld this woman. " Now we must needs take coun-
AMERICAN HISTORICAL DOCUMENTS 17
sel together," says Karlsef ni ; " for that I believe they will visit us a third time in great numbers, and attack us. Let us now adopt this plan. T^n of our number shall go out upon the cape, and show themselves there ; while the remainder of our company shall go into the woods and hew a clearing for our cattle, when the troop approaches from the forest. We will also take our bull, and let him go in advance of us." The lie of the land was such that the proposed meeting-place had the lake upon the one side and the forest upon the other. Karlsefni's advice was now carried into execution. Tht Skrellings advanced to the spot which Karlsefni had selected for the encounter; and a battle was fought there, in which great numbers of the band of the Skrellings were slain. There was one man among the Skrellings, of large size and fine bearing, whom Karlsefni concluded must be their chief. One of the Skrellings picked up an axe; and, having looked at it for a time, he brandished it about one of his companions, and hewed at him, and on the instant the man fell dead. There- upon the big man seized the axe ; and, after examining it for a moment, he hurled it as far as he could out into the sea. Then they fled helter skelter into the woods, and thus their in- tercourse came to an end. Karlsefni and his party remained there throughout the winter; but in the spring Karlsefni an- nounces that he is not minded to remain there longer, but will return to Greenland. They now made ready for the voyage, and carried away with them much booty in vines and grapes and peltries. They sailed out upon the high seas, and brought their ship safely to Ericsfirth, where they remained during the winter.
Freydis Causes the Brothers to be Put to. Death
There was now much talk about a Wineland voyage, for this was reckoned both a profitable and an honorable en- terprise. The same summer that Karlsefni arrived from Wineland a ship from Norway arrived in Greenland. This ship was commanded by two brothers, Helgi and Finnbogi, who passed the winter in Greenland. They were descended from an Icelandic family of the East-firths. It is now to be added that Freydis, Eric's daughter, set out from her home at
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Gardar, and waited upon the brothers, Helgi and Finnbogi, and invited them to sail with their vessel to Wineland, and to share with her equally all of the good things which they might succeed in obtaining there. To this they agreed, and she departed thence to visit her brother, Leif, and ask him to give her the house which he had caused to be erected in Wineland; but he made her the same answer [as that which he had given Karlsefni], saying that he would lend the house, but not give it. It was stipulated between Karlsefni and Freydis that each should have on ship-board thirty able- bodied men, besides the women; but Freydis immediately violated this compact by concealing five men more [than this number], and this the brothers did not discover before they arrived in Wineland. They now put out to sea, having agreed beforehand that they would sail in company, if possible, and, although they were not far apart from each other, the brothers arrived somewhat in advance, and carried their be- longings up to Leif's house. Now, when Freydis arrived, her ship was discharged and the baggage carried up to the house, whereupon Freydis exclaimed, " Why did you carry your baggage in here?" "Since we believed," said they, "that all promises made to us would be kept." " It was to me that Leif loaned the house," says she, " and not to you." Whereupon Helgi exclaimed, " We brothers cannot hope to rival thee in wrong dealing." They thereupon carried their baggage forth, and built a hut, above the sea, on the bank of the lake, and put all in order about it; while Freydis caused wood to be felled, with which to load her ship. The winter now set in, and the brothers suggested that they should amuse themselves by playing games. This they did for a time, until the folk began to disagree, when dissensions arose between them, and the games came to an end, and the visits between the houses ceased; and thus it continued far into the winter. One morning early Freydis arose from her bed and dressed herself, but did not put on her shoes and stockings. A heavy dew had fallen, and she took her husband's cloak, and wrapped it about her, and then walked to the brothers' house, and up to the door, which had been only partly closed by one of the men, who had gone out a short time before. She pushed the door open, and stood silently in the doorway for a time.
AMERICAN HISTORICAL DOCUMENTS 19
Finnbogi, who was lying on the innermost side of the room, was awake, and said, " What dost thou wish here, Freydis ?" She answers, " I wish thee to rise and go out with me, for I would speak with thee." He did so; and they walked to a tree, which lay close by the wall of the house, and seated themselves upon it. " How art thou pleased here ?" says she. He answers, " I am well pleased with the fruitfulness of the land; but I am ill content with the breach which has come between us, for, methinks, there has been no cause for it/' " It is even as thou sayest," says she, " and so it seems to me ; but my errand to thee is that I wish to exchange ships with you brothers, for that ye have a larger ship than I, and I wish to depart from here." "To this I must accede," says he, "if it is thy pleasure." Therewith they parted ; and she returned home and Finnbogi to his bed. She climbed up into bed, and awakened Thorvard with her cold feet ; and he asked her why she was so cold and wet. She answered with great passion : " I have been to the brothers," says she, " to try to buy their ship, for I wished to have a larger vessel; but they received my overtures so ill that they struck me and handled me very roughly; what time thou, poor wretch, wilt neither avenge my shame nor thy own; and I find, perforce, that I am no longer in Greenland. Moreover I shall part from thee unless thou wreakest vengeance for this." And now he could stand her taunts no longer, and ordered the men to rise at once and take their weapons ; and this they yield. And they then proceeded directly to the house of the brothers, and entered it while the folk were asleep, and seized and bound them, and led each one out when he was bound; and, as they came out, Freydis caused each one to be slain. In this wise all of the men were put to death, and only the women were left; and these no one would kill. At this Freydis exclaimed, " Hand me an axe." This was done; and she fell upon the five women, and left them dead. They returned home after this dreadful deed; and it was very evident that Freydis was well content with her work. She addressed her companions, saying, " If it be ordained for us to come again to Greenland, I shall contrive the death of any man who shall speak of these events. We must give it out that we left them living bere when we came away." Early in the spring they equipped
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the ship which had belonged to the brothers, and freighted it with all of the products of the land which they could obtain, and which the ship would carry. Then they put out to sea, and after a prosperous voyage arrived with their ship in Ericsfirth early in the summer. Karlsefni was there, with his ship all ready to sail, and was awaiting a fair wind; and people say that a ship richer laden than that which he com- manded never left Greenland.
Concerning Freydis
Freydis now went to her home, since it had remained un- harmed during her absence. She bestowed liberal gifts upon all of her companions, for she was anxious to screen her guilt. She now established herself at her home; but her companions were not all so close-mouthed concerning their misdeeds and wickedness that rumors did not get abroad at last. These finally reached her brother, Leif, and he thought it a most shameful story. He thereupon took three of the men, who had been of Freydis' party, and forced them all at the same time to a confession of the affair, and their stories entirely agreed. " I have no heart," says Leif, " to punish my sister, Freydis, as she deserves, but this I predict of them, that there is little prosperity in store for their offspring." Hence it came to pass that no one from that time forward thought them worthy of aught but evil. It now remains to take up the story from the time when Karlsefni made his ship ready, and sailed out to sea. He had a successful voyage, and arrived in Norway safe and sound. He remained there during the winter, and sold his wares ; and both he and his wife were received with great favor by the most distinguished men of Norway. The following spring he put his ship in order for the voyage to Iceland; and when all his preparations had been made, and his ship was lying at the wharf, awaiting favorable winds, there came to him a Southerner, a native of Bremen in the Saxonland, who wished to buy his "house-neat." " I do not wish to sell it," says he. "I will give thee half a *m6rk' in gold for it," says the Southerner. This Karlsefni thought a good offer, and accordingly closed the bargain. The South- erner went his way with the "house-neat," and Karlsefni
AMERICAN HISTORICAL DOCLTMENTS 21
knew not what wood it was, but it was " mosur," come from Wineland.
Karlsefni sailed away, and arrived with his ship in the north of Iceland, in Skagafirth. His vessel was beached there during the winter, and in the spring he bought Glaum- boeiar-land, and made his home there, and dwelt there as long as he lived, and was a man of the greatest prominence. From him and his wife, Gudrid, a numerous and goodly line- age is descended. After Karlsefni's death Gudrid, together with her son Snorri, who was born in Wineland, took charge of the farmstead; and, when Snorri was married, Gudrid went abroad, and made a pilgrimage to the South, after which she returned again to the home of her son Snorri, who had caused a church to be built at Glaumboer. Gudrid then took the veil and became an anchorite, and lived there the rest of her days. Snorri had a son, named Thorgeir, who was the father of Ingveld, the mother of Bishop Brand. Hallfrid was the name of the daughter of Snorri, Karlsefni's son: she was the mother of Runolf, Bishop Thorlak's father. Biorn was the name of [another] son of Karlsefni and Gudrid : he was the father of Thorunn, the mother of Bishop Biorn. Many men are descended from Karlsefni, and he has been blessed with a numerous and famous posterity; and of all men Karlsefni has given the most exact accounts of all these voyages, of which something, has now been recounted.
THE LETTER OF COLUMBUS
TO LUIS DE SANT ANGEL
ANNOUNCING HIS DISCOVERY
0493)
[The following letter was written by Columbus, near the end of his return voyage, to Luis de Sant Angel, Treasurer of Aragon, who had given him substantial help in fitting out his expedition. This announcement of his discovery of the West Indies was evidently intended for the eyes of Ferdinand and Isabella. The text of the present translation is taken from American History Leaflets, edited by Professors Hart and Channing.]
Sir:
A S I know you will be rejoiced at the glorious success l\ that our Lord has given me in my voyage, I write this •^-^to tell you how in thirty-three days I sailed to the Indies with the fleet that the illustrious King and Queen, our Sovereigns, gave me, where I discovered a great many islands, inhabited by numberless people; and of all I have taken possession for their Highnesses by proclamation and display of the Royal Standard without opposition. To the first island I discovered I gave the name of San Salva- dor, in commemoration of His Divine Majesty, who has wonderfully granted all this. The Indians call it Guan- aham. The second I named the Island of Santa Maria de Concepcion; the third, Fernandina; the fourth, Isabella; the fifth, Juana; and thus to each one I gave a new name. When I came to Juana, I followed the coast of that isle toward the west, and found it so extensive that I thought it might be the mainland, the province of Cathay; and as I found no towns nor villages on the sea-coast, except a few small settlements, where it was impossible to speak to the people, because they fled at once, I continued the said route, thinking I could not fail to see some great cities or towns; and finding at the end of many leagues that nothing new
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AMERICAN HISTORICAL DOCUMENTS 23
appeared, and that the coast led northward, contrary to my wish, because the winter had already set in, I decided to make for the south, and as the wind also was against my proceeding, I determined not to wait there longer, and turned back to a certain harbor whence I sent two men to find out whether there was any king or large city. They explored for three days, and found countless small com- munities and people, without number, but with no kind of government, so they returned.
I heard from other Indians I had already taken that this land was an island, and thus followed the eastern coast for one hundred and seven leagues, until I came to the end of it. From that point I saw another isle to the eastward, at eighteen leagues' distance, to which I gave the name of Hispaniola. I went thither and followed its northern coast to the east, as I had done in Juana, one hundred and seventy- eight leagues eastward, as in Juana. This island, like all the others, is most extensive. It has many ports along the sea-coast excelling any in Christendom — and many fine, large, flowing rivers. The land there is elevated, with many mountains and peaks incomparably higher than in the centre isle. They are most beautiful, of a thousand varied forms, accessible, and full of trees of endless varieties, so high that they seem to touch the sky, and I have been told that they never lose their foliage. I saw them as green and lovely as trees are in Spain in the month of May. Some of them were covered with blossoms, some with fruit, and some in other conditions, according to their kind. The nightingale and other small birds of a thousand kinds were singing in the month of November when I was there. There were palm trees of six or eight varieties, the graceful peculiarities of each one of them being worthy of admiration as are the other trees, fruits and grasses. There are wonderful pine woods, and very extensive ranges of meadow land. There is honey, and there are many kinds of birds, and a great variety of fruits. In- land there are numerous mines of metals and innumerable people. Hispaniola is a marvel. Its hills and mountains, fine plains and open country, are rich and fertile for plant- ing and for pasturage, and for building towns and villages.
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The seaports there are incredibly fine, as also the mag- nificent rivers, most of which bear gold. The trees, fruits and grasses differ widely from those in Juana. There are many spices and vast mines of gold and other metals in this island. They have no iron, nor steel, nor weapons, nor are they fit for them, because although they are well-made men of commanding stature, they appear extraordinarily timid. The only arms they have are sticks of cane, cut when in seed, with a sharpened stick at the end, and they are afraid to use these. Often I have sent two or three men ashore to some town to converse with them, and the natives came out in great numbers, and as soon as they saw our men arrive, fled without a moment's delay although I protected them from all injury.
At every point where I landed, and succeeded in talking to them, I gave them some of everything I had — cloth and many other things — without receiving anything in re- turn, but they are a hopelessly timid people. It is true that since they have gained more confidence and are losing this fear, they are so unsuspicious and so generous with what they possess, that no one who had not seen it would believe it. They never refuse anything that is asked for. They even offer it themselves, and show so much love that they would give their very hearts. Whether it be anything of great or small value, with any trifle of whatever kind, they are satisfied. I forbade worthless things being given to them, such as bits of broken bowls, pieces of glass, and old straps, although they were as much pleased to get them as if they were the finest jewels in the world. One sailor was found to have got for a leathern strap, gold of the weight of two and a half castellanos, and others for even more worthless things much more; while for a new hlancas they would give all they had, were it two or three castellanos of pure gold or an arroba or two of spun cotton. Even bits of the broken hoops of wine casks they accepted, and gave in return what they had, like fools, and it seemed wrong to me. I forbade it, and gave a thousand good and pretty things that I had to win their love, and to induce them to become Christians, and to love and serve their Highnesses and the whole Castilian nation, and help to
AMERICAN HISTORICAL DOCUMENTS 25
get for us things they have in abundance, which are neces- sary to us. They have no religion, nor idolatry, except that they all believe power and goodness to be in heaven. They firmly believed that I, with my ships and men, came from heaven, and with this idea I have been received every- where, since they lost fear of me. They are, however, far from being ignorant. They are most ingenious men, and navigate these seas in a wonderful way, and describe everything well, but they never before saw people wearing clothes, nor vessels like ours. Directly I reached the Indies in the first isle I discovered, I took by force some of the natives, that from them we might gain some informa- tion of what there was in these parts; and so it was that we immediately understood each other, either by words or signs. They are still with me and still believe that I come from heaven. They were the first to declare this wherever I went, and the others ran from house to house, and to the towns around, crying out, " Come ! come ! and see the men from heaven ! " Then all, both men and women, as soon as they were reassured about us, came, both small and great, all bringing something to eat and to drink, which they presented with marvellous kindness. In these isles there are a great many canoes, something like rowing boats, of all sizes, and most of them are larger than an eighteen- oared galley. They are not so broad, as they are made of a single plank, but a galley could not keep up with them in rowing, because they go with incredible speed, and with these they row about among all these islands, which are innumerable, and carry on their commerce. I have seen some of these canoes with seventy and eighty men in them, and each had an oar. In all the islands I observed little difference in the appearance of the people, or in their habits and language, except that they understand each other, which is remarkable. Therefore I hope that their Highnesses will decide upon the conversion of these people to our holy faith, to which they seem much inclined. I have already stated how I sailed one hundred and seven leagues along the sea-coast of Juana, in a straight line from west to east. I can therefore assert that this island it larger than England and Scotland together, since beyond
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these one hundred and seven leagues there remained at the west point two provinces where I did not go, one of which they call Avan, the home of men with tails. These prov- inces are computed to be fifty or sixty leagues in length, as far as can be gathered from the Indians with me, who are acquainted with all these islands. This other, Hispan- iola, is larger in circumference than all Spain from Cata- lonia to Fuentarabia in Biscay, since upon one of its four sides I sailed one hundred and eighty-eight leagues from west to east. This is worth having, and must on no ac- count be given up. I have taken possession of all these islands, for their Highnesses, and all may be more exten- sive than I know, or can say, and I hold them for their Highnesses, who can command them as absolutely as the kingdoms of Castile. In Hispaniola, in the most con- venient place, most accessible for the gold mines and all commerce with the mainland on this side or with that of the great Khan, on the other, with which there would be great trade and profit, I have taken possession of a large town, which I have named the City of Navidad. I began fortifications there which should be completed by this time, and I have left in it men enough to hold it, with arms, artillery, and provisions for more than a year; and a boat with a master seaman skilled in the arts necessary to make others; I am so friendly with the king of that country that he was proud to call me his brother and hold me as such. Even should he change his mind and wish to quarrel with my men, neither he nor his subjects know what arms are, nor wear clothes, as I have said. They are the most timid people in the world, so that only the men remain- ing there could destroy the whole region, and run no risk if they know how to behave themselves properly. In all these islands the men seem to be satisfied with one wife, except they allow as many as twenty to their chief or king. The women appear to me to work harder than the men, and so far as I can hear they have nothing of their own, for I think I perceived that what one had others shared, especially food. In the islands so far, I have found no monsters, as some expected, but, on the contrary, they are people of very handsome appearance. They are not
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black as in Guinea, though their hair is straight and coarse, as it does not grow where the sun's rays are too ardent. And in truth the sun has extreme power here, since it is within twenty-six degrees of the equinoctial line. In these islands there are mountains where the cold this winter was very severe, but the people endure it from habit, and with the aid of the meat they eat with very hot spices.
As for monsters, I have found not trace of them except at the point in the second isle as one enters the Indies, which is inhabited by a people considered in all the isles as most ferocious, who eat human flesh. They possess many canoes, with which they overrun all the isles of India, stealing and seizing all they can. They are not worse looking than the others, except that they wear their hair long like women, and use bows and arrows of the same cane, with a sharp stick at the end for want of iron, of which they have none. They are ferocious compared to these other races, who are extremely cowardly; but I only hear this from the others. They are said to make treaties of marriage with the women in the first isle to be met with coming from Spain to the Indies, where there are no men. These women have no feminine occupation, but use bows and arrows of cane like those before mentioned, and cover and arm themselves with plates of copper, of which they have a great quantity. Another island, I am told, is larger than Hispaniola, where the natives have no hair, and where there is countless gold; and from them all I bring Indians to testify to this. To speak, in conclusion, only of what has been done during this hurried voyage, their Highnesses will see that I can give them as much gold as they desire, if they will give me a little assistance, spices, cotton, as much as their Highnesses may command to be shipped, and mastic as much as their Highnesses choose to send for, which until now has only been found in Greece, in the isle of Chios, and the Signoria can get its own price for it; as much lign-aloe as they command to be shipped, and as many slaves as they choose to send for, all heathens. I think I have found rhubarb and cinnamon. Many other things of value will be discovered by the men I left behind me, as I stayed nowhere when the wind allowed me to
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pursue my voyage, except in the City of Navidad, which I left fortified and safe. Indeed, I might have accomplished much more, had the crews served me as they ought to have done. The eternal and almighty God, our Lord, it is Who gives to all who walk in His way, victory over things ap- parently impossible, and in this case signally so, because although these lands had been imagined and talked of before they were seen, most men listened incredulously to what was thought to be but an idle tale. But our Redeemer has given victory to our most illustrious King and Queen, and to their kingdoms rendered famous by this glorious event, at which all Christendom should rejoice, celebrating it with great festivities and solemn Thanksgivings to the Holy Trinity, with fervent prayers for the high distinction that will accrue to them from turning so many peoples to our holy faith; and also from the temporal benefits that not only Spain but all Christian nations will obtain. Thus I record what has happened in a brief note written on board the Caravel, off the Canary Isles, on the 15th of February,
1493-
Yours to command,
The Admiral.
Postscript within the letter
Since writing the above, being in the Sea of Castile, so much wind arose south southeast, that I was forced to lighten the vessels, to run into this port of Lisbon to-day which was the most extraordinary thing in the world, from whence I resolved to write to their Highnesses. In all the Indies I always found the temperature like that of May. Where I went in thirty-three days I returned in twenty- eight, except that these gales have detained me fourteen days, knocking about in this sea, Here all seamen say that there has never been so rough a winter, nor so many vessels lost. Done the 14th day of March.
This letter Columbus sent to the Chancellor of the Ex- chequer, from the Islands discovered in the Indies, enclosed in another to their Highnesses.
AMERIGO VESPUCCI'S
ACCOUNT OF HIS FIRST VOYAGE
(H97)
[Amerigo Vespucci was born in Florence in 1452 and died in Seville in 1512. He was employed in the latter city in the business house which fitted out Columbus's second expedition. The following letter gives his own account of the first of the four voyages which he claimed to have made to the New World. He seems to have touched the mainland a few weeks before Cabot, and some fourteen months before Columbus. The suspicions which lohg clouded his title to fame have been largely dissipated by modern investigation; and it seems to have been not without reason that Waldseemuller in 1507 proposed to call the new continent by his name.
The present translation is made from Vespucci's Italian (published at Florence in 1505-6) by "M. K.," for Quaritch's edition, London, 1885.]
Letter of Amerigo Vespucci to Pier Soderini, Gon- falonier OF THE Republic of Florence
MAGNIFICENT Lord. After humble reverence and due commendations, etc. It may be that your Mag- nificence will be surprised by (this conjunction of) my rashness and your customary wisdom, in that I should so absurdly bestir myself to write to your Magnificence the present so-prolix letter: knowing (as I do) that your Mag- nificence is continually employed in high councils and affairs concerning the good government of this sublime Republic. And will hold me not only presumptuous, but also idly- meddlesome in setting myself to write things, neither suit- able to your station, nor entertaining, and written in bar- barous style, and outside of every canon of polite literature : but my confidence which I have in your virtues and in the truth of my writing, which are things (that) are not found
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written neither by the ancients nor by modern writers, as your Magnificence will in the sequel perceive, makes me bold. The chief cause which moved (me) to write to you, was at the request of the present bearer, who is named Ben- venuto Benvenuti our Florentine {fellow-citizen), very much, as it is proven, your Magnificence's servant, and my very good friend: who happening to be here in this city of Lis- bon, begged that I should make communication to your Magnificence of the things seen by me in divers regions of the world, by virtue of four voyages which I have made in discovery of new lands : two by order of the king of Castile, King Don Ferrando VL, across the great gulf of the Ocean- sea, towards the west: and the other two by command of the puissant King Don Manuel King of Portugal, towards the south : Telling me that your Magnificence would take pleasure thereof, and that herein he hoped to do you serv- ice: wherefore I set me to do it: because I am assured that your Magnificence holds me in the number of your servants, remembering that in the time of our youth I was your friend, and now {am your) servant: and {remembering our) going to hear the rudiments of grammar under the fair example and instruction of the venerable monk friar of Saint Mark Fra Giorgio Antonio Vespucci: whose counsels and teaching would to God that I had followed : for as saith Petrarch, I should be another man than what I am. Howbeit soever I grieve not: because I have ever taken delight in worthy matters : and although these trifles of mine may not , be suitable to your virtues, I will say to you as said Pliny to Maecenas, you were sometime wont to take pleasure in my prattlings: even though your Magnificence be contin- uously busied in public affairs, you will take some hour of relaxation to consume a little time in frivolous or amusing things : and as fennel is customarily given atop of delicious viands to fit them for better digestion, so may you, for a relief from your so heavy occupations, order this letter of mine to be read: so that they may withdraw you somewhat from the continual anxiety and assiduous reflection upon public affairs: and if I shall be prolix, I crave pardon, my Magnificent Lord. Your Magnificence shall know that the motive of my coming into this realm of Spain was to traffic
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in merchandise: and that I pursued this intent about four years: during which I saw and knew the inconstant shift- ings of Fortune : and how she kept changing those frail and transitory benefits: and how at one time she holds man on the summit of the wheel, and at another time drives him back from her, and despoils him of what may be called his borrowed riches: so that, knowing the continuous toil which man undergoes to win them, submitting himself to so many anxieties and risks, I resolved to abandon trade, and to fix my aim upon something more praiseworthy and stable : whence it was that I made preparation for going to see part of the world and its wonders: and herefor the time and place presented themselves most opportunely to me: which was that the King Don Ferrando of Castile being about to despatch four ships to discover new lands towards the west, I was chosen by his Highness to go in that fleet to aid in making discovery: and we set out from the port of Cadiz on the loth day of May 1497, and took our route through the great gulph of the Ocean-sea : in which voyage we were eighteen months (engaged) : and discovered much continen- tal land and innumerable islands, and great part of them inhabited: whereas there is no mention made by the ancient writers of them: I believe, because they had no knowledge thereof: for, if I remember well, I have read in some one (of those writers) that he considered that this Ocean-sea was an unpeopled sea: and of this opinion was Dante our poet in the xxvi. chapter of the Inferno, where he feigns the death of Ulysses, in which voyage I beheld things of great wondrousness, as your Magnificence shall understand. As I said above, we left the port of Cadiz four consort ships: and began our voyage in direct course to the For- tunate Isles which are called to-day la gran Canaria, which are situated in the Ocean-sea at the extremity of the inhab- ited west, {and) set in the third climate: over which the North Pole has an elevation of 27 and a half degrees beyond their horizon* and they are 280 leagues distant from this city of Lisbon, by the wind between mezzo di and Uheccio:* where
*That is, which are situate at 27"^ degrees north latitude.
• South-south-west. It is to be remarked that Vespucci always uses the word wind to signify the course in which it blows, not the quarter from which it rises.
32 AMERICAN HISTORICAL DOCUMENTS
we remained eight days, taking in provision of water, and wood and other necessary things: and from here, having said our prayers, we weighed anchor, and gave the sails to the wind, beginning our course to westward, taking one quarter by south-west:' and so we sailed on till at the end of 37 days we reached a land which we deemed to be a continent: which is distant westwardly from the isles of Canary about a thousand leagues beyond the inhabited region* within the torrid zone: for we * found the North Pole at an elevation of i6 degrees above its horizon,*^ and (it was) westward, according to the shewing of our instru- ments, 75 degrees from the isles of Canary: whereat we anchored with our ships a league and a half from land; and we put out our boats freighted with men and arms : we made towards the land, and before we reached it, had sight of a great number of people who were going along the shore: by which we were much rejoiced: and we observed that they were a naked race: they shewed themselves to stand in fear of us: I believe (it was) because they saw us clothed and of other appearance (than their own) : they all withdrew to a hill, and for whatsoever signals we made to them of peace and of friendliness, they would not come to parley with us: so that, as the night was now coming on, and as the ships were anchored in a dangerous place, being on a rough and shelterless coast, we decided to remove from there the next day, and to go in search of some har- bour or bay, where we might place our ships in safety: and we sailed with the maestrale wind,* thus running along the coast with the land ever in sight, continually in our course observing people along the shore : till after having navigated for two days, we found a place sufficiently secure for the ships, and anchored half a league from land, on which we saw a very great number of people: and this same day we put to land with the boats, and sprang on shore full 40 men m good trim: and still the land's people appeared shy of converse with us, and we were unable to encourage them so
"West and a quarter by south-west. , . ., r w-^c
*This phrase is merely equivalent to a repetition of from the CanariLS, these .islands having been already designated the extreme western hmtt of inhabited land.
''That is, 16 degrees north latitude.
• North-west.
AMERICAN HISTORICAL DOCUMENTS 33
much as to make them come to speak with us: and this day we laboured so greatly in giving them of our wares, such as rattles and mirrors, beads, spalline, and other trifles, that some of them took confidence and came to discourse with us: and after having made good friends with them, the night coming on, we took our leave of them and returned to the ships: and the next day when the dawn appeared we saw that there were infinite numbers of people upon the beach, and they had their women and children with them: we went ashore, and found that they were all laden with their worldly goods' which are suchlike as, in its (proper) place, shall be related : and before we reached the land, many of them jumped into the sea and came swimming to receive us at a bowshot's length (from the shore), for they are very great swimmers, with as much confidence as if they had for a long time been acquainted with us: and we were pleased with this their confidence. For so much as we learned of their manner of life and customs, it was that they go entirely naked, as well the men as the women. . . . They are of medium stature, very well pro- portioned : their flesh is of a colour that verges into red like a lion's mane : and I believe that if they went clothed, they would be as white as we: they have not any hair upon the body, except the hair of the head which is long and black, and especially in the women, whom it renders handsome : in aspect they are not very good-looking, because they have broad faces, so that they would seem Tartar-like: they let no hair grow on their eyebrows, nor on their eyelids, nor elsewhere, except the hair of the head: for they hold hair- iness to be a filthy thing: they are very light footed in walk- ing and in running, as well the men as the women : so that a woman recks nothing of running a league or two, as many times we saw them do: and herein they have a very great advantage over us Christians: they swim (with an expert- ness) beyond all belief, and the women better than the men: for we have many times found and seen them swimming two leagues out at sea without anything to rest upon. Their arms are bows and arrows very well made, save that (the
» Mantenimenti. The word ** afl " {.tuae^ is feminine, and probably ref trs only to the women.
BC XLUI (2)
34 AMERICAN HISTORICAL DOCUMENTS
arrows) are not (tipped) with iron nor any other kind of hard metal: and instead of iron they put animals* or fishes* teeth, or a spike of tough wood, with the point hardened by fire: they are sure marksmen, for they hit whatever they aim at : and in some places the women use these bows : they have other weapons, such as fire-hardened spears, and also clubs with knobs, beautifully carved. Warfare is used amongst them, which they carry on against people not of their own language, very cruelly, without granting life to any one, except (to reserve him) for greater sufifering When they go to war, they take their women with them, not that these may fight, but because they carry behind them their worldly goods, for a woman carries on her back for thirty or forty leagues a load which no man could bear: as we have many times seen them do. They are not accus- tomed to have any Captain, nor do they go in any ordered array, for every one is lord of himself: and the cause of their wars is not for lust of dominion, nor of extending their frontiers, nor for inordinate covetousness, but for some ancient enmity which in by-gone times arose amongst them : and when asked why they made war, they knew not any other reason to give than that they did so to avenge the death of their ancestors, or of their parents: these people have neither King, nor Lord, nor do they yield obedience to any one, for they live in their own liberty : and how they be stirred up to go to war is {this) that when the enemies have slain or captured any of them, his oldest kinsman rises up and goes about the highways haranguing them to go with him and avenge the death of such his kinsman: and so are they stirred up by fellow-feeling: they have no judicial system, nor do they punish the ill-doer : nor does the father, nor the mother chastise the children: and marvellously (seldom) or never did we see any dispute among them: in their conversation they appear simple, and they are very cunning and acute in that which concerns them: they speak little and in a low tone: they use the same articulations as we, since they form their utterances either with the palate, or with the teeth, or on the lips:* except that they give
• He means that they have no sounds in their language unknown to Euro- pean organs of speech, all being either palatals or dentals or labials.
AMERICAN HISTORICAL DOCUMENTS 35
different names to things. Many are the varieties of tongues : for in every lOO leagues we found a change of language, so that they are not understandable each to the other. The manner of their living is very barbarous, for they do not eat at certain hours, and as oftentimes as they will: and it is not much of a boon to them* that the will may come more at midnight than by day, for they eat at all hours: and they eat upon the ground without a table-cloth or any other cover, for they have their meats either in earthen basins which they make themselves, or in the halves of pumpkins : they sleep in certain very large nettings made of cotton, suspended in the air: and although this their (fashion of) sleeping may seem uncomfortable, I say that it IS sweet to sleep in those (nettings) : and we slept better in them than in the counterpanes. They are a people smooth and clean of body, because of so continually washing them- selves as they do. . . . Amongst those people we did not learn that they had any law, nor can they be called Moors nor Jews, and (they are) worse than pagans: be- cause we did not observe that they offered any sacrifice: nor even had they a house of prayer : their manner of living I judge to be Epicurean: their dwellings are in common: and their houses (are) made in the style of huts, but strongly made, and constructed with very large trees, and covered over with palm-leaves, secure against storms and winds: and in some places (they are) of so great breadth and length, that in one single house we found there were 600 souls: and we saw a village of only thirteen houses where there ' were four thousand souls: every eight or ten years they change their habitations : and when asked why they did so : (they said it was) because of the soil which, from its filthi- ness, was already unhealthy and corrupted, and that it bred aches in their bodies, which seemed to us a good reason: their riches consist of birds* plumes of many colours, or of rosaries which they make from fishbones, or of white or green stones which they put in their cheeks and in their lips and ears, and of many other things which we in no wise value : they use no trade, they neither buy nor sell. In fine,
• I have translated " et non si da loro motto ** as ** it Is not much of a boon to them," but may be " it matters not much to them."
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they live and are contented with that which nature gives them. The wealth that we enjoy in this our Europe and elsewhere, such as gold, jewels, pearls, and other riches, they hold as nothing: and although they have them in their own lands, they do not labour to obtain them, nor do they value them. They are liberal in giving, for it is rarely they deny you anything: and on the other hand, liberal in asking, when they shew themselves your friends. . . . When they die, they use divers manners of obsequies, and some they bury with water and victuals at their heads: thinking that they shall have {whereof) to eat: they have not nor do they use ceremonies of torches nor of lamenta- tion. In some other places, they use the most barbarous and inhuman burial, which is that when a suffering or infirm (person) is as it were at the last pass of death, his kinsmen carry him into a large forest, and attach one of those nets, of theirs, in which they sleep, to two trees, and then put him in it, and dance around him for a whole day : and when the night comes on they place at his bolster, water with other victuals, so that he may be able to subsist for four or six days: and then they leave him alone and return to the village: and if the sick man helps himself, and eats, and drinks, and survives, he returns to the village, and his (friends) receive him with ceremony : but few are they who escape: without receiving any further visit they die, and that is their sepulture: and they have many other customs which for prolixity are not related. They use in their sick- nesses various forms of medicines," so different from ours that we marvelled how any one escaped: for many times I saw that with a man sick of fever, when it heightened upon him, they bathed him from head to foot with a large quantity of cold water: then they lit a great fire around him, making him turn and turn again every two hours, until they tired him and left him to sleep, and many were (thus) cured: with this they make use of dieting, for they remain three days without eating, and also of blood-letting, but not from the arm, only from the thighs and the loins and the calf of the leg: also they provoke vomiting with their herbs which are put into the mouth: and they use many other remedies
«>TJiat is, "medical treatment.**
AMERICAN HISTORICAL DOCUMENTS 37
which it would be long to relate: they are much vitiated in the phlegm and in the blood because of their food which consists chiefly of roots of herbs, and fruits and fish: they have no seed of wheat nor other grain: and for their ordi- nary use and feeding, they have a root of a tree, from which they make flour, tolerably good, and they call it luca, and another which they call Cazabi, and another Ignami: they eat little flesh except human flesh: for your Magnificence must know that herein they are so inhuman that they outdo every custom (even) of beasts; for they eat all their enemies whom they kill or capture, as well females as males with so much savagery, that (merely) to relate it appears a hor- rible thing: how much more so to see it, as, infinite times and in many places, it was my hap to see it : and they won- dered to hear us say that we did not eat our enemies: and this your Magnificence may take for certain, that their other barbarous customs are such that expression is too weak for the reality: and as in these four voyages I have seen so many things diverse from our customs, I prepared to write a common-place-book which I name Le quattro Giornate: in which I have set down the greater part of the things which I saw, sufficiently in detail, so far as my feeble wit has allowed me: which I have not yet published, because I have so ill a taste for my own things that I do not relish those which I have written, notwithstanding that many encourage me to publish it: therein everything will be seen in detail : so that I shall not enlarge further in this chapter : as in the course of the letter we shall come to many other things which are particular: let this suffice for the general. At this beginning, we saw nothing in the land of much profit, except some show of gold: I believe the cause of it was that we did not know the language : but in so far as concerns the situation and condition of the land, it could not be better : we decided to leave that place, and to go further on, continuously coasting the shore: upon which we made frequent descents, and held converse with a great number of people: and at the end of some days we went into a harbour where we underwent very great danger: and it pleased the Holy Ghost to save us : and it was in this wise. We landed in a harbour, where we found a village built like
38 AMERICAN HISTORICAL DOCUMENTS
Venice upon the water: there were about 44 large dwellings in the form of huts erected upon very thick piles, and they had their doors or entrances in the style of drawbridges: and from each house one could pass through all, by means of the drawbridges which stretched from house to house: and when the people thereof had seen us, they appeared to be afraid of us, and immediately drew up all the bridges: and while we were looking at this strange action, we saw coming across the sea about 22 canoes, which are a kind of boats of theirs, constructed from a single tree: which came towards our boats, as they had been surprised by our appearance and clothes, and kept wide of us: and thus re- maining, we made signals to them that they should approach us, encouraging them with every token of friendliness: and seeing that they did not come, we went to them, and they did not stay for us, but made to the land, and, by signs, told us to wait, and that they should soon return : and they went to a hill in the background, and did not delay long: when they returned, they led with them 16 of their girls, and entered with these into their canoes, and came to the boats : and in each boat they put 4 of the girls. That we marvelled at this behavior your Magnificence can imagine how much, and they placed themselves with their canoes among our boats, coming to speak with us: insomuch that we deemed it a mark of friendliness: and while thus engaged, we beheld a great number of people advance swimming towards us across the sea, who came from the houses: and as they were drawing near to us without any apprehension: just then there appeared at the doors of the houses certain old women, uttering very loud cries and tearing their hair to exhibit grief: whereby they made us suspicious, and we each betook ourselves to arms: and instantly the girls whom we had in the boats, threw themselves into the sea, and the men of the canoes drew away from us, and began with their bows to shoot arrows at us: and those who were swimming each carried a lance held, as covertly as they could, beneath the water: so that, recognizing the treachery, we engaged with them, not merely to defend ourselves, but to attack them vigorously, and we overturned with our boats many of their almadie or canoes, for so they call them, we made a slaughter
AMERICAN HISTORICAL DOCUMENTS 39
{of them), and they all flung themselves into the water to swim, leaving their canoes abandoned, with considerable loss on their side, they went swimming away to the shore: there died of them about 15 or 20, and many were left wounded: and of ours 5 were wounded, and all, by the grace of God, escaped {death) : we captured two of the girls and two men: and we proceeded to their houses, and entered therein, and in them all we found nothing else than two old women and a sick man: we took away from them many things, but of small value: and we would not burn their houses, because it seemed to us (as though that would be) a burden upon our conscience : and we returned to our boats with five pris- oners: and betook ourselves to the ships, and put a pair of irons on the feet of each of the captives, except the little girls : and when the night came on, the two girls and one of the men fled away in the most subtle manner possible: and next day we decided to quit that harbour and go further onwards: we proceeded continuously skirting the coast, {until) we had sight of another tribe distant perhaps some 80 leagues from the former tribe: and we found them very different in speech and customs : we resolved to cast anchor, and went ashore with the boats, and we saw on the beach a great number of people amounting probably to 4000 souls: and when we had reached the shore, they did not stay for us, but betook themselves to flight through the forests, aban- doning their things : we jumped on land, and took a pathway that led to the forest : and at the distance of a bow-shot we found their tents, where they had made very large fires, and two (of them) were cooking their victuals, and roasting several animals, and fish of many kinds : where we saw that they were roasting a certain animal which seemed to be a serpent, save that it had no wings, and was in its appearance so loathsome that we marvelled much at its savageness: Thus went we on through their houses, or rather tents, and found many of those serpents alive, and they were tied by the feet and had a cord around their snouts, so that they could not open their mouths, as is done (in Europe) with mastiff-dogs so that they may not bite: they were of such savage aspect that none of us dared to take one away, think- ing that they were poisonous: they are of the bigness of a
40 AMERICAN HISTORICAL DOCUMENTS
kid, and in length an ell and a half:" their feet are long and thick, and armed with big claws : they have a hard skin, and are of various colours: they have the muzzle and face of a serpent : and from their snouts there rises a crest like a saw which extends along the middle of the back as far as the tip of the tail : in fine we deemed them to be serpents and venom- ous, and (nevertheless, those people) ate them: we found that they made bread out of little fishes which they took from the sea, first boiling them, (then) pounding them, and making thereof a paste, or bread, and they baked them on the embers: thus did they eat them: we tried it, and found that it was good: they had so many other kinds of eatables, and especially of fruits and roots, that it would be a large matter to describe them in detail : and seeing that the people did not return, we decided not to touch nor take away any- thing of theirs, so as better to reassure them: and we left in the tents for them many of our things, placed where they should see them, and returned by night to our ships : and the next day, when it was light, we saw on the beach an infinite number of people: and we landed: and although they ap- peared timorous towards us, they took courage nevertheless to hold converse with us, giving us whatever we asked of them : and shewing themselves very friendly towards us, they told us that those were their dwellings, and that they had come hither for the purpose of fishing: and they begged that we would visit their dwellings and villages, because they desired to receive us as friends: and they engaged in such friendship because of the two captured men whom we had with us, as these were their enemies: insomuch that, in view of such importunity on their part, holding a council, we determined that 28 of us Christians in good array should go with them, and in the firm resolve to die if it should be neces- sary : and after we had been here some three days, we went with them inland: and at three leagues from the coast we came to a village of many people and few houses, for there were no more than nine (of these) : where we were received with such and so many barbarous ceremonies that the pen suffices not to write them down : for there were dances, and songs, and lamentations mingled with rejoicing, and great ^Tbis animal was the iguana.
AMERICAN HISTORICAL DOCUMENTS 4i
quantities of food: and here we remained the night: , . . and after having been here that night and half the next day, so great was the number of people who came wondering to behold us that they were beyond counting: and the most aged begged us to go with them to other villages which were further inland, making display of doing us the greatest honour : wherefore we decided to go : and it would be impos- sible to tell you how much honour they did us : and we went to several villages, so that we were nine days journeying, so that our Christians who had remained with the ships were already apprehensive concerning us : and when we were about i8 leagues in the interior of the land, we resolved to return to the ships: and on our way back, such was the number of people, as well men as women, that came with us as far as the sea, that it was a wondrous thing: and if any of us became weary of the march, they carried us in their nets very refreshingly : and in crossing the rivers, which are many and very large, they passed us over by skilful means so securely that we ran no danger whatever, and many of them came laden with the things which they had given us, which consisted in their sleeping-nets, and very rich feathers, many bows and arrows, innumerable popinjays of divers colours: and others brought with them loads of their household goods, and of animals: but a greater marvel will I tell you, that, when we had to cross a river, he deemed himself lucky who was able to carry us on his back : and when we reached the sea, our boats having arrived, we entered into them : and so great was the struggle which they made to get into our boats, and to come to see our ships, that we marvelled (thereat) : and in our boats we took as many of them as we could, and made our way to the ships, and so many (others) came swimming that we found ourselves embarrassed in seeing so many people in the ships, for there were over a thousand persons all naked and unarmed : they were amazed by our (nautical) gear and contrivances, and the size of the ships: and with them there occurred to us a very laughable affair, which was that we decided to fire off some of our great guns, and when the explosion took place, most of them through fear cast themselves (into the sea) to swim, not otherwise than frogs on the margins of a pond, when they
42 AMERICAN HISTORICAL DOCUMENTS
see something that frightens them, will jump into the water, just so did those people: and those who remained in the ships were so terrified that we regretted our action: how- ever we reassured them by telling them that with those arms we slew our enemies : and when they had amused themselves in the ships the whole day, we told them to go away because we desired to depart that night, and so separating from us with much friendship and love, they went away to land. Amongst that people and in their land, I knew and beheld so many of their customs and ways of living, that I do not care to enlarge upon them: for Your Magnificence must know that in each of my voyages I have noted the most wonderful things, and I have indited it all in a volume after the manner of a geography: and I intitle it Le quattro GiORNATE : in which work the things are comprised in detail, and as yet there is no copy of it given out, as it is necessary for me to revise it. This land is very populous, and full of inhabitants, and of numberless rivers, (and) animals : few (of which) resemble ours, excepting lions, panthers, stags, pigs, goats, and deer: and even these have some dissimilar- ities of form: they have no horses nor mules, nor, saving your reverence, asses nor dogs, nor any kind of sheep or oxen: but so numerous are the other animals which they have, and all are savage, and of none do they make use for their service, that they could not be counted. What shall we say of others (such as) birds? which are so numerous, and of so many kinds, and of such various-coloured plumages, that it is a marvel to behold them. The soil is very pleasant and fruitful, full of immense woods and forests: and it is always green, for the foliage never drops off. The fruits are so many that they are numberless and entirely different from ours. This land is within the torrid zone, close to or just under the parallel described by the Tropic of Cancer: where the pole of the horizon has an elevation of 23 de- grees, at the extremity of the second climate.** Many tribes came to see us, and wondered at our faces and our white- ness : and they asked us whence we came : and we gave them to understand that we had come from heaven, and that we were going to see the world, and they believed it. In this u That is, 23 degrees north latitude.
AMERICAN HISTORICAL DOCUMENTS 43
land we placed baptismal fonts, and an infinite (number of) people were baptised, and they called us in their language Carabi, which means men of great wisdom. We took our departure from that port : and the province is called Lariab : and we navigated along the coast, always in sight of land, until we had run 870 leagues of it, still going in the direction of the maestrale (north-west) making in our course many halts, and holding intercourse with many peoples: and in several places we obtained gold by barter but not much in quantity, for we had done enough in discovering the land and learning that they had gold. We had now been thirteen months on the voyage : and the vessels and the tackling were already much damaged, and the men worn out by fatigue: we decided by general council to haul our ships on land and examine them for the purpose of stanching leaks, as they made much water, and of caulking and tarring them afresh, and (then) returning towards Spain: and when we came to this determination, we were close to a harbour the best in the world : into which we entered with our vessels : where we found an immense number of people: who received us with much friendliness: and on the shore we made a bas- tion" with our boats and with barrels and casks, and our artillery, which commanded every point: and our ships hav- ing been unloaded and lightened, we drew them upon land, and repaired them in everything that was needful: and the land's people gave us very great assistance: and continually furnished us with their victuals: so that in this port we tasted little of our own, which suited our game well: for the stock of provisions which we had for our return-passage was little and of sorry kind: where (i.e., there) we remained 37 days : and went many times to their villages : where they paid us the greatest honour: and (now) desiring to depart upon our voyage, they made complaint to us how at certain times of the year there came from over the sea to this their land, a race of people very cruel, and enemies of theirs: and (who) by means of treachery or of violence slew many of them, and ate them: and some they made captives, and car- ried them away to their houses, or country: and how they could scarcely contrive to defend themselves from them, "Fort or barricade.
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making signs to us that (those) were an island-people and lived out in the sea about a hundred leagues away: and so piteously did they tell us this that we believed them: and we promised to avenge them of so much wrong: and they remained overjoyed herewith: and many of them offered to come along with us, but we did not wish to take them for many reasons, save that we took seven of them, on con- dition that they should come (i.e., return home) afterwards in (their own) canoes because we did not desire to be obliged to take them back to their country: and they were contented: and so we departed from those people, leaving them very friendly towards us: and having repaired our ships, and sailing for seven days out to sea between north- east and east: and at the end of the seven days we came upon the islands, which were many, some (of them) inhab- ited, and others deserted : and we anchored at one of them : where we saw a numerous people who called it Iti: and kaving manned our boats with strong crews, and (taken ammunition for) three cannon-shots in each, we made for land: where we found (assembled) about 400 men, and many women, and all naked like the former (peoples). They were of good bodily presence, and seemed right warlike men : for they were armed with their weapons, which are bows, ar- rows, and lances: and most of them had square wooden targets : and bore them in such wise that they did not impede the drawing of the bow: and when we had come with our boats to about a bowshot of the land, they all sprang into the water to shoot their arrows at us and to prevent us from leaping upon shore: and they all had their bodies painted of various colours, and (were) plumed with feathers: and the interpreters who were with us told us that when (those) displayed themselves so painted and plumed, it was to be- token that they wanted to fight: and so much. did they per- sist in preventing us from landing, that we were compelled to play with our artillery: and when they heard the ex- plosion, and saw one of them fall dead, they all drew back to the land: wherefore, forming our council, we resolved that 42 of our men should spring on shore, and, if they waited for us, fight them : thus having leaped to land with our weapons, they advanced towards us, and we fought for about
AMERICAN HISTORICAL DOCUMENTS 45
an hour, for we had but little advantage of them, except that our arbalasters and gunners killed some of them, and they wounded certain of our men : and this was because they did not stand to receive us within reach of lance-thrust or sword-blow: and so much vigour did we put forth at last, that we came to sword-play, and when they tasted our weapons, they betook themselves to flight through the moun- tains and the forests, and left us conquerors of the field with many of them dead and a good number wounded: and for that day we took no other pains to pursue them, because we were very weary, and we returned to our ships, with so much gladness on the part of the seven men who had come with us that they could not contain themselves (for joy) : and when the next day arrived, we beheld coming across the land a great number of people, with signals of battle, con- tinually sounding horns, and various other instruments which they use in their wars: and all (of them) painted and feath- ered, so that it was a very strange sight to behold them: wherefore all the ships held council, and it was resolved that since this people desired hostility with us, we should proceed to encounter them and try by every means to make them friends: in case they would not have our friendship, that we should treat them as foes, and so many of them as we might be able to capture should all be our slaves: and having armed ourselves as best we could, we advanced to- wards the shore, and they sought not to hinder us from landing, I believe from fear of the cannons: and we jumped on land, 57 men in four squadrons, each one (consisting of) a captain and his company : an^ we came to blows with them : and after a long battle (in which) many of them (were) slain, we put them to flight, and pursued them to a village, having made about 250 of them captives, and we burnt the village, and returned to our ships with victory and 250 pris- oners, leaving many of them dead and wounded, and of ours there were no more than one killed, and 22 wounded, who all escaped (i.e., recovered), God be thanked. We arranged our departure, and seven men, of whom five were wounded, took an island-canoe, and with seven prisoners that we gave them, four women and three men, returned to their (own) country full of gladness, wondering at our
46 AMERICAN HISTORICAL DOCUMENTS
strength: and we thereon made sail for Spain with 222 captive slaves: and reached the port of Calls (Cadiz) on the 15th day of October, 1498, where we were well received and sold our slaves. Such is what befell me, most note- worthy, in this my first voyage.
JOHN CABOT'S DISCOVERY OF NORTH AMERICA
(H97)
[Giovanni Caboto (John Cabot) was a native of Genoa and a citizen of Venice, who obtained letters-patent from Henry VII. of England in 1496, for a voyage of discovery. In the summer of 1497, he crossed the Atlantic and discovered the mainland of North America — ^probably the Labrador coast. On this achievement was based the claim of England to North America. The following three documents contain all the evidence from contemporary witnesses whose information may have come from John Cabot himself. The text followed is from the Hakluyt Society's edition of Columbus's Journal.]
Letter from Lorenzo Pasqualigo to His Brothers Alvise AND Francesco.*
London, 23rd August, 1497.
OUR Venetian, who went with a small ship from Bristol to find new islands, has come back, and says he has discovered, 700 leagues off, the mainland of the coun- try of the Gran Cam, and that he coasted along it for 300 leagues, and landed, but did not see any person. But he has brought here to the king certain snares spread to take game, and a needle for making nets, and he found some notched trees, from which he judged that there were inhabitants. Be- ing in doubt, he came back to the ship. He has been away three months on the voyage, which is certain, and, in return- ing, he saw two islands to the right, but he did not wish to land, lest he should lose time for he was in warxt of pro- visions. This king has been much pleased. He says that the tides are slack, and do not make currents as they ao here. The king has promised for another time, ten armed ships as he desires, and has given him all the prisoners, ^Calendar of State Papers (Venice), i. p. 262, No. 753.
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except such as are confined for high treason, to go with him, as he has requested; and has granted him money to amuse himself till then. Meanwhile, he is with his Vene- tian wife and his sons at Bristol. His name is Zuam Talbot,' and he is called the Great Admiral, great honour being paid to him, and he goes dressed in silk. The English are ready- to go with him, and so are many of our rascals. The dis- coverer of these things has planted a large cross in the ground with a banner of England, and one of St. Mark, as he is a Venetian ; so that our flag has been hoisted very far away.
First Despatch of Raimondo di Soncino to the Duke of Milan* ( Extract. )
24th August, 1497. Some month afterwards His Majesty sent a Venetian, who is a distinguished sailor, and who was much skilled in the discovery of new islands, and he has returned safe, and has discovered two very large and fertile islands, having, it would seem, discovered the seven cities 400 leagues from England to the westward. These successes led His Majesty at once to entertain the intention of sending him with fifteen or twenty vessels.
Second Despatch of Raimondo di Soncino to the Duke of Milan*
i8th December, 1497. My most illustrious and most excellent Lord,
Perhaps amidst so many occupations of your Excellency it will not be unwelcome to learn how this Majesty has acquired a part of Asia without drawing his sword. In this kingdom there is a certain Venetian named Zoanne Caboto, of gentle disposition, very expert in navigation, who, seeing that the most serene Kings of Portugal and Spain had occu- pied unknown islands, meditated the achievement of a sim- ilar acquisition for the said Majesty. Having obtained royal
* A misprint: " T " for " C."
^Calendar of State Papers (Venice), iii. p. 260, No. 750.
* Annuario Scientifico, Milan, i866» p. 700; Archiv d'Etat Milan, reprinted by Harrisse in his John Cabot, p. 324, from the Intorno of Desimoni, and translated from his text for the Hakluyt Society, with his permission.
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privileges securing to himself the use of the dominions he might discover, the sovereignty being reserved to the Crown, he entrusted his fortune to a small vessel with a crew of i8 persons, and set out from Bristo, a port in the western part of this kingdom. Having passed Ibernia, which is still further to the west, and then shaped a northerly course, he began to navigate to the eastern part, leaving (during several days) the North Star on the right hand; and having wan- dered thus for a long time, at length he hit upon land, where he hoisted the royal standard, and took possession for his Highness, and, having obtained various proofs of his dis- covery, he returned. The said Messer Zoanne, being a for- eigner and poor, would not have been believed if the crew, who are nearly all English, and belonging to Bristo, had not testified that what he said was the truth. This Messer Zoanne has the description of the world on a chart, and also on a solid sphere which he has constructed, and on which he shows where he has been; and, proceeding towards the east, he has passed as far as the country of the Tanais. And they say that there the land is excellent and (the climate?) temperate, suggesting that brasil and silk grow there. They affirm that the sea is full of fish, which are not only taken with a net, but also with a basket, a stone being fastened to it in order to keep it in the water; and this I have heard stated by the said Messer Zoanne.
The said Englishmen, his companionvS. say that they took so many fish that this kingdom will no longer have need of Iceland, from which country there is an immense trade in the fish they call stock-fish. But Messer Zoanne has set his mind on higher things, for he thinks that, when that place has been occupied, he will keep on still further towards the east, where he will be opposite to an island called Ci- pango, situated in the equinoctial region, where he believes that all the spices of the world, as well as the jewels, are found. He further says that he was once at Mecca, whither the spices are brought by caravans from distant countries; and having inquired from whence they were brought and where they grow, they answered that they did not know, but that such merchandize was brought from distant coun- tries by other caravans to their home; and they further say
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that they are also conveyed from other remote regions. And he adduced this argument, that if the eastern people tell those in the south that these things come from a far distance from them, presupposing the rotundity of the earth, it must be that the last turn would be by the norh towards the west ; and it is said that in this way the route would not cost more than it costs now, and I also believe it. And what is more, this Majesty, who is wise and not prodigal, reposes such trust in him because of what he has already achieved, that he gives him a good maintenance, as Messer Zoanne has himself told me. And it is said that before long his Majesty will arm some ships for him, and will give him all the male- factors to go to that country and form a colony, so that they hope to establish a greater depot of spices in London than there is in Alexandria. The principal people in the enter- prise belong to Bristo. They are great seamen, and, now that they know where to go, they say that the voyage thither will not occupy more than 15 days after leaving Ibernia. I have also spoken with a Burgundian, who was a companion of Messer Zoanne, who affirms all this, and who wishes to return because the Admiral (for so Messer Zoanne is en- titled) has given him an island, and has given another to his barber of Castione," who is a Genoese, and both look upon themselves as Counts; nor do they look upon my Lord the Admiral as less than a Prince. I also believe that some poor Italian friars are going on this voyage, who have all had bishopricks promised to them. And if I had made friends with the Admiral when he was about to sail, I should have got an archbishoprick at least; but I have thought that the benefits reserved for me by your Excellency will be more secure. I would venture to pray that, in the event of a vacancy taking place in my absence, I may be put in possession, and that I may not be superseded by those who, being present, can be more diligent than I, who am reduced in this country to eating at each meal ten or twelve kinds of victuals, and to being three hours at table every day, two for love of your Excellency, to whom I humbly recom- mend myself. London, 18 Dec. 1497, yo^r Excellency's most humbie servant, Raimundus.
* Perhaps Castiglione, near Chiavari.
FIRST CHARTER OF VIRGINIA
(.606)
[This charter, granted by King James L on April 10, 1606, to the oldest of the English colonies in America, is a typical example of the documents issued by the British government, authorizing " Ad- venturers " to establish plantations in the New World. The name " Virginia ** was at that time applied to all that part of North America claimed by Great Britain.]
I JAMES, by the Grace of God, King of England, Scot- land, France and Ireland, Defender of the Faith, &c. Whereas our loving and well-disposed Subjects, Sir Thomas Gates, and Sir George Somers, Knights, Richard Hackluit, Prebendary of Westminster, and Edward-Maria Wingfield, Thomas Hanham, and Ralegh Gilbert, Esqrs. William Parker, and George Popham, Gentlemen, and divers others of our loving Subjects, have been humble Suitors unto us, that We would vouchsafe unto them our Licence, to make Habitation, Plantation, and to deduce a Colony of sundry of our People into that Part of America, commonly called Virginia, and other Parts and Territories in America, either appertaining unto us, or which are not now actually possessed by any Christian Prince or People, situate, lying, and being all along the Sea Coasts, between four and thirty Degrees of Northerly Latitude from the Equinoctial Line, and five and forty Degrees of the same Latitude, and in the main Land between the same four and thirty and five and forty Degrees, and the Islands there- unto adjacent, or within one hundred Miles of the Coasts thereof;
IL And to that End, and for the more speedy Accom- plishment of their said intended Plantation and Habitation there, are desirous to divide themselves into two several Colonies and Companies; The one consisting of certain
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Knights, Gentlemen, Merchants, and other Adventurers, o£ our City of London and elsewhere, which are, and from time to time shall be, joined unto them, which do desire to begin their Plantation and Habitation in some fit and con- venient Place, between four and thirty and one and forty Degrees of the said Latitude, along the Coasts of Virginia and Coasts of America aforesaid; And the other consisting of sundry Knights, Gentlemen, Merchants, and other Ad- venturers, of our Cities of Bristol and Exeter, and of our Town of Plimouth, and of other Places, which do join them- selves unto that Colony, which do desire to begin their Plantation and Habitation in some fit and convenient Place, between eight and thirty Degrees and five and forty De- grees of the said Latitude, all alongst the said Coast of Virginia and America, as that Coast lyeth :
III. We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Wor- ship of God, and may in time bring the Infidels and Sav- ages, living in those Parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters Patents, graciously accept of, and agree to, their humble and well-intended Desires ;
IV. And do therefore, for Us, our Heirs, and Successors, GRANT and agree, that the said Sir Thomas Gates, Sir George Somers, Richard Hackluit, and Edward-Maria Wingfield, Adventurers of and for our City of London, and all such others, as are, or shall be, joined unto them of that Colony, shall be called the first Colony; And they shall and may begin their said first Plantation and Habitation, at any Place upon the said Coast of Virginia or America, where they shall think fit and convenient, between the said four and thirty and one and forty Degrees of the said Latitude; And that they shall have all the Lands, Woods, Soil, Grounds, Havens, Ports, Rivers, Mines, Minerals, Marshes, Waters, Fishings, Commodities, and Heredita- ments, whatsoever, from the said first Seat of their Planta-
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tion and Habitation by the Space of fifty Miles of English Statute Measure, all along the said Coast of Virginia and America, towards the West and Southwest, as the Coast lyeth, with all the Islands within one hundred Miles directly over against the same Sea Coast; And also all the Lands, Soil, Grounds, Havens, Ports, Rivers, Mines, Minerals, Woods, Waters, Marshes, Fishings, Commodities, and Hereditaments, whatsoever, from the said Place of their first Plantation and Habitation for the space of fifty like English Miles all alongst the said Coast of Virginia and America, towards the East and Northeast, or towards the North, as the Coast lyeth, together with all the Islands within one hundred Miles, directly over against the said Sea Coast; And also all the Lands, Woods, Soil, Grounds, Havens, Ports, Rivers, Mines, Minerals, Marshes, Waters, Fishings, Commodities, and Hereditaments, whatsoever, from the same fifty Miles every way on the Sea Coast, directly into the main Land by the Space of one hundred like English Miles; And shall and may inhabit and remain there; and shall and may also build and fortify within any the same, for their better Safeguard and Defence, according to their best Discretion, and the Discretion of the Council of that Colony; And that no other of our Subjects shall be permitted, or suffered, to plant or inhabit behind, or on the Backside of them, towards the main Land, without the Express License or Consent of the Council of that Colony, thereunto in Writing first had and obtained.
V. And we do likewise, for Us, our Heirs, and Succes- sors, by these Presents, Grant and agree, that the said Thomas Hanham, and Ralegh Gilbert, William Parker, and George Popham, and all others of the Town of Pli- mouth in the County of Devon, or elsewhere, which are, or shall be, joined unto them of that Colony, shall be called the second Colony; And that they shall and may begin their said Plantation and Seat of their first Abode and Habita- tion, at any Place upon the said Coast of Virginia and America, where they shall think fit and convenient, between eight and thirty Degrees of the said Latitude, and five and forty Degrees of the same Latitude; And that they shall have all the Lands, Soils, Grounds, Havens, Ports, Rivers,
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Mines, Minerals, Woods, Marshes, Waters, Fishings, Com- modities, and Hereditaments, whatsoever from the first Seat of their Plantation and Habitation by the Space of fifty like English Miles as is aforesaid, all alongst the said Coast of Virginia and America, towards the West and Southwest, or towards the South, as the Coast lyeth, and all the Islands within one hundred Miles, directly over against the said Sea Coast; And also all the Lands, Soils, Grounds, Havens, Ports, Rivers, Mines, Minerals, Woods, Marshes, Waters, Fishings, Commodities, and Heredita- ments, whatsoever, from the said Place of their first Planta- tion and Habitation for the Space of fifty like Miles, all alongst the said Coast of Virginia and America, towards the East and Northeast, or towards the North, as the Coast lyeth, and all the Islands also within one hundred Miles directly over against the same Sea Coast; And also all the Lands, Soils, Grounds, Havens, Ports, Rivers, Woods, Mines, Minerals, Marshes, Waters, Fishings, Commodities, and Hereditaments, whatsoever, from the same fifty Miles every way on the Sea Coast, directly into the main Land, by the Space of one hundred like English Miles; And shall and may inhabit and remain there; and shall and may also build and fortify within any the same for their better Safe- guard, according to their best Discretion, and the Discre- tion of the Council of that Colony; And that none of our Subjects shall be permitted, or suffered, to plant or inhabit behind, or on the back of them, towards the main Land, without the express License of the Council of that Colony, in Writing thereunto first had and obtained.
VI. Provided always, and our Will and Pleasure herein is, that the Plantation and Habitation of such of the said Colonies, as shall last plant themselves, as aforesaid, shall not be made within one hundred like English Miles of the other of them, that first began to make their Plantation, as aforesaid.
VIL And we do also ordain, establish, and agree, for Us, our Heirs, and Successors, that each of the said Colonies shall have a Council, which shall govern and order all Matters and Causes, which shall arise, grow, or happen, to or within the same several Colonies, according to such
AMERICAN HISTORICAL DOCUMENTS 55
Laws, Ordinances, and Instructions, as shall be, in that be- half, given and signed with Our Hand or Sign Manual, and pass under the Privy Seal of our Realm of England; Each of which Councils shall consist of thirteen Persons, to be ordained, made, and removed, from time to time, according as shall be directed, and comprised in the same instruc- tions; And shall have a several Seal, for all Matters that shall pass or concern the same several Councils; Each of which Seals shall have the King's Arms engraven on the one Side thereof, and his Portraiture on the other; And that the Seal for the Council of the said first Colony shall have engraven round about, on the one side, these Words; Sigil- lum Regis Magnce Britannice, Francice, & Hihernics; on the other Side this Inscription, round about; Pro Concilio primce Colonics Virginice. And the seal for the Council of the said second Colony shall also have engraven, round about the one Side thereof, the aforesaid Words; Sigillum Regis MagncB, Britannice, Francice, & Hihernice; and on the other Side; Pro Concilio secundce Colonics Virginice:
VIII. And that also there shall be a Council established here in England, which shall, in like Manner, consist of thirteen Persons, to be, for that Purpose, appointed by Us, our Heirs and Successors, which shall be called our Council of Virginia; And shall, from time to time, have the superior Managing and Direction, only of and for all Matters, that shall or may concern the Government, as well of the said several Colonies, as of and for any other Part or Place, within the aforesaid Precincts of four and thirty and five and forty Degrees, abovementioned ; Which Council shall, in like manner, have a Seal, for Matters concerning the Council of Colonies, with the like Arms and Portraiture, as aforesaid, with this Inscription, engraven round about on the one Side; Sigillum Regis Magnce Britannice, Francicr, & Hihernice; and round about the other side. Pro Concilio suo VirginicB.
IX. And moreover, we do Grant and agree, for Us, our Heirs and Successors, that the said several Councils, of and for the said several Colonies, shall and lawfully may, by Virtue hereof, from time to time, without any Interrup- tion of Us, our Heirs, or Successors, give and take Order,
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to dig, mine, and search for all Manner of Mines of Gold, Silver, and Copper, as well within any part of their said several Colonies, as for the said main Lands on the Back- side of the same Colonies; And to Have and enjoy the Gold, Silver, and Copper, to be gotten thereof, to the Use and Behoof of the same Colonies, and the Plantations there- of; Yielding therefore, to Us, our Heirs and Successors, the fifth Part only of all the same Gold and Silver, and the fifteenth Part of all the same Copper, so to be gotten or had, as is aforesaid, without any other Manner or Profit or Account, to be given or yielded to Us, our Heirs, or Suc- cessors, for or in Respect of the same:
X. And that they shall, or lawfully may, establish and cause to be made a Coin, to pass current there between the People of those several Colonies, for the more Ease of Traffick and Bargaining between and amongst them and the Natives there, of such Metal, and in such Manner and Form, as the said several Councils there shall limit and appoint.
XL And we do likewise, for Us, our Heirs, and Succes- sors, by these Presents, give full Power and Authority to the said Sir Thomas Gates, Sir George Somers, Richard Hackluit, Edward -Maria WingHeld, Thomas Hanham, Ralegh Gilbert, William Parker, and George Popham, and to every of them, and to the said several Companies, Planta- tions, and Colonies, that they, and every of them, shall and may, at all and every time and times hereafter, have, take, and lead in the said Voyage, and for and towards the said several Plantations and Colonies, and to travel thitherward, and to abide and inhabit there, in every the said Colonies and Plantations, such and so many of our Subjects, as shall willingly accompany them, or any of them, in the said Voyages and Plantations; With sufficient Shipping and Furniture of Armour, Weapons, Ordinance, Powder, Vic- tual, and all ether things, necessary for the said Planta- tions, and for their Use and Defence there: Provided always, that nrjie of the said Persons be such, as shall hereafter be specially restrained by Us, our Heirs, or Successors.
XII. Moreover, we do, by these Presents, for Us, our
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Heirs, and Successors, Give and grant Licence unto the said Sir Thomas Gates, Sir George Somers, Richard Hack- luit, Edward-Maria Wingfield, Thomas Hanham, Ralegh Gilbert, William Parker, and George Popham, and to every of the said Colonies, that they, and every of them, shall and may, from time to time, and at all times for ever here- after, for their several Defences, encounter, expulse, repel, and resist, as well by Sea as by Land, by all Ways and Means whatsoever, all and every such Person and Persons, as without the especial Licence of the said several Colonies and Plantations, shall attempt to inhabit within the said several Precincts and Limits of the said several Colonies and Plantations, or any of them, or that shall enterprise or attempt, at any time hereafter, the Hurt, Detriment, or Annoyance, of the said several Colonies or Plantations.
XIII. Giving and granting, by these Presents, unto the said Sir Thomas Gates, Sir George Somers, Richard Hackluit, Edward-Maria Wingfield, and their Associates of the said first Colony, and unto the said Thomas Hanham, Ralegh Gilbert, William Parker, and George Popham, and their Associates of the said second Colony, and to every of them, from time to time, and at all times for ever hereafter. Power and Authority to take and surprise, by all Ways and Means whatsoever, all and every Person and Persons, with their Ships, Vessels, Goods and other Furniture, which shall be found trafficking, into any Harbour or Harbours, Creek or Creeks, or Place, within the Limits or Precincts of the said several Colonies and Plantations, not being of the same Colony, until such time, as they, being of any Realms or Dominions under our Obedience, shall pay, or agree to pay, to the Hands of the Treasurer of that Colony, within whose Limits and Precincts they shall so traffick, two and a half upon every Hundred, of any thing, so by them trafficked, bought, or sold; And being Strangers, and not Subjects under our Obeysance, until they shall pay five upon every Hundred, of such Wares and Merchandise, as they shall traffick, buy, or sell, within the Precincts of the said several Colonies, wherein they shall so traffick, buy, or sell, as afore- said. Which Sums of Money, or Benefit, as aforesaid, for and during the Space of one and twenty Years, next ensu-
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ing the Date hereof, shall be wholly emploied to the Use, Benefit, and Behoof of the said several Plantations, where such Traffick shall be made; And after the said one and twenty Years ended, the same shall be taken to the Use of Us, our Heirs, and Successors, by such Ofificers and Minis- ters, as by Us, our Heirs, and Successors, shall be thereunto assigned or appointed.
XIV. And we do further, by these Presents, for Us, our Heirs, and Successors, Give and grant unto the said Sir Thomas Gates, Sir George Somers, Richard Hackluit, and Edward-Maria Wingfield, and to their Associates of the said first Colony and Plantation, and to the said Thomas Hanham, Ralegh Gilbert, William Parker, and George Pop- ham, and their Associates of the said second Colony and Plantation, that they, and every of them, by their Deputies, Ministers and Factors, may transport the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel, Food, Defence, or otherwise in Respect of the said Plantations, out of our Realms of England and Ireland, and all other our Dominions, from time to time, for and during the Time of seven Years, next ensuing the Date hereof, for the better Relief of the said several Colonies and Plantations, without any Custom, Sub- sidy, or other Duty, unto Us, our Heirs, or Successors, to be yielded or paid for the same.
XV. Also we do, for Us, our Heirs, and Successors, Declare, by these Presents, that all and every the Persons, being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall have and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.
XVI. Moreover, our gracious Will and Pleasure is, and we do, by these Presents, for Us, our Heirs, and Successors, declare and set forth, that if any Person or Persons, which shall be of any of the said Colonies and Plantations, or any
AMERICAN HISTORICAL DOCUMENTS 59
other, which shall traffick to the said Colonies and Planta- tions, or any of them, shall, at any time or times hereafter, transport any Wares, Merchandises, or Commodities, out of any of our Dominions, with a Pretence to land, sell, or otherwise dispose of the same, within any the Limits and Precincts of any the said Colonies and Plantations, and yet nevertheless, being at Sea, or after he hath landed the same within any of the said Colonies and Plantations, shall carry the same into any other Foreign Country, with a -Purpose there to sell or dispose of the same, without the Licence of Us, our Heirs, and Successors, in that Behalf first had and obtained; That then, all the Goods and Chattels of such Person or Persons, so offending and transporting, together with the said Ship or Vessel, wherein such Transportation was made, shall be forfeited to Us, our Heirs, and Suc- cessors.
XVII. Provided always, and our Will and Pleasure is, and we do hereby declare to all Christian Kings, Princes, and States, that if any Person or Persons, which shall here- after be of any of the said several Colonies and Plantations, or any other, by his, their or any of their Licence and Appointment, shall, at any time or times hereafter, rob or spoil, by Sea or by Land, or do any Act of unjust and un- lawful Hostility, to any the Subjects of Us, our Heirs, or Successors, or any the Subjects of any King, Prince, Ruler, Governor, or State, being then in League or Amity with Us, our Heirs, or Successors, and that upon such Injury, or upon just Complaint of such Prince, Ruler, Governor, or State, or their Subjects, We, our Heirs, or Successors, shall make open Proclamation, within any of the Ports of our Realm of England, commodious for that Purpose, That the said Person or Persons, having committed any such Rob- bery or Spoil, shall, within the Term to be limited by such Proclamations make full Restitution or Satisfaction of all such Injuries done, so as the said Princes, or others, so complaining, may hold themselves fully satisfied and con- tented; And that, if the said Person or Persons, having committed such Robbery or Spoil, shall not make, or cause to be made, Satisfaction accordingly, within such Time so to be limited, That then it shall be lawful to Us, our Heirs^
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and Successors, to put the said Person or Persons, having committed such Robbery or Spoil, and their Procurers, Abetters, or Comforters, out of our Allegiance and Protec- tion; And that it shall be lawful and free, for all Princes and others, to pursue with Hostility the said Offenders, and every of them, and their and every of their Procurers, Aiders, Abetters, and Comforters, in that Behalf.
XVIII. And finally, we do, for Us, our Heirs, and Suc- cessors, Grant and agree, to and with the said Sir Thomas Gates, Sir George Somers, Richard Hackluit, and Edward- Maria Wingfield, and all others of the said first Colony, that We, our Heirs, and Successors, upon Petition in that Behalf to be made, shall, by Letters-patent under the Great Seal of England, Give and Grant unto such Persons, their Heirs, and Assigns, as the Council of that Colony, or the most Part of them, shall, for that Purpose nominate and assign, all the Lands, Tenements, and Hereditaments, which shall be within the Precincts limited for that Colony, as is aforesaid. To be holden of Us, our Heirs, and Succes- sors, as of our Manor at East-Greenwich in the County of Kent, in free and common Soccage only, and not in Capite:
XIX. And do, in like Manner, Grant and Agree, for Us, our Heirs, and Successors, to and with the said Thomas Hanham, Ralegh Gilbert, William Parker, and George Popham, and all others of the said second Colony, That We, our Heirs, and Successors, upon Petition in that Behalf to be made, shall, by Letters-patent under the Great Seal of England, Give and Grant unto such Persons, their Heirs, and Assigns, as the Council of that Colony, or the most Part of them, shall, for that Purpose, nominate and assign, all the Lands, Tenements, and Hereditaments, which shall be within the Precincts limited for that Colony, as is afore- said To BE HOLDEN OF Us, our Hcirs, and Successors, as of our Manour of East-Greenwich in the County of Kent, in free and common Soccage only, and not in Capite.
XX. All which Lands, Tenements, and Hereditaments, so to be passed by the said several Letters-patent, shall be sufficient Assurance from the said Patentees, so distributed and divided amongst the Undertakers for the Plantation of the said several Colonies, and such as shall make their
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Plantations in either of the said several Colonies, in such Manner and Form, and for such Estates, as shall be ordered and set down by the Council of the said Colony, or the most Part of them, respectively, within which the same Lands, Tenements, and Hereditaments shall lye or be; Although express Mention of the true yearly Value or Certainty of the Premises, or any of them, or of any other Gifts or Grants, by Us or any of our Progenitors or Predecessors, to the aforesaid Sir Thomas Gates, Knt. Sir George Somers, Knt. Richard Hackluit, Edward-Maria Wingfield, Thomas Hanham, Ralegh Gilbert, William Parker, and George Popham, or any of them, heretofore made, in these Presents, is not made; Or any Statute, Act, Ordinance, or Provision, Proclamation, or Restraint, to the contrary hereof had, made, ordained, or any other Thing, Cause, or Matter whatsoever, in any wise notwithstanding. In Witness whereof we have caused these our Letters to be made Patents; Witness Ourself at Westminster, the tenth Day of April, in the fourth Year of our Reign of England, France, and Ireland, and of Scotland the nine and thirtieth.
THE MAYFLOWER COMPACT
(1620)
[From the History of Plymouth Plantation by William Bradford (1590-1657), second governor of Plymouth.]
IN the name of God, Amen. We, whose names are under- written, the loyal subjects of our dread sovereigne Lord, King James, by the grace of God, of Great Britaine, France, and Ireland king, defender of the faith, etc., having undertaken, for the glory of God, and advancement of the Christian faith, and honour of our king and country, a voyage to plant the first colony in the Northerne parts of Virginia, doe, by these presents solemnly and mutually in the pres- ence of God, and one of another, convenant and combine ourselves together into a civill body politick, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enacte, constitute, and frame such just and equall laws, ordinances, acts, consti- tutions, and offices, from time to time, as shall be thought most meete and convenient for the generall good of the Colonic unto which we promise all due submission and obedience. In witness whereof we have hereunder sub- scribed our names at Cap-Codd the 11. of November, in the year of the raigne of our sovereigne lord, King James, of England, France, and Ireland, the eighteenth, and of Scotland the fiftie-fourth. Anno. Dom. 1620.
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THE FUNDAMENTAL ORDERS OF CONNECTICUT
(1639)
[These " Orders " were adopted by a popular convention of the three towns of Windsor, Hartford, and Wethersfield, on January 14, 1639. They form, according to historians, " the first written con- stitution, in the modern sense of the term, as a permanent limitation on governmental power, known in history, and certainly the first American constitution of government to embody the democratic idea."]
FORASMUCH as it hath pleased the Almighty God by the wise disposition of his diuyne prouidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and vppon the River of Conecte- cotte and the Lands thereunto adioyneing ; And well knowing where a people are gathered togather the word of God re- quires that to mayntayne the peace and vnion of such a peo- ple there should be an orderly and decent Gouerment estab- lished according to God, to order and dispose of the aflfayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike State or Comonwelth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus which we now professe, as also the disciplyne of the Churches, which according to the truth of the said gospell is now practised amongst vs ; As also in our Ciuell Affaires to be guided and gouerned according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as followeth: —
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1. It is Ordered, sentenced and decreed, that there shall be yerely two general! Assemblies or Courts, the on the second thursday in Aprill, the other the second thursday in September, following; the first shall be called the Courte of Election, wherein shall be yerely Chosen from tyme to tyme soe many Magestrats and other publike Officers as shall be found requisitte: Whereof one to be chosen Gou- ernour for the yeare ensueing and vntill another be chosen, and noe other Magestrate to be chosen for more than one yeare; prouided allwayes there be sixe chosen besids the Gouernour; which being chosen and sworne according to an Oath recorded for that purpose shall haue power to administer iustice according to the Lawes here established, and for want thereof according to the rule of the word of God; which choise shall be made by all that are admitted freemen and haue taken the Oath of Fidellity, andl doe cohabitte within this Jurisdiction, (hauing beene admitted Inhabitants by the maior part of the Towne wherein they Hue,) or the mayor parte of such as shall be then present.
2. It is Ordered, sentensed and decreed, that the Election of the aforesaid Magestrats shall be on this manner: euery person present and quallified for choyse shall bring in (to the persons deputed to receaue them) one single paper with the name of him written in yt whom he desires to haue (Gouernour, and he that hath the greatest number of papers shall be Gouernor for that yeare. And the rest of the Magestrats or publike Officers to be chosen in this manner: The Secretary for the tyme being shall first read the names of all that are to be put to choise and then shall seuerally nominate them distinctly, and euery one that would haue the person nominated to be chosen shall bring in one single paper written vppon, and he that would not haue him chosen shall bring in a blanker and euery one that hath more written papers then blanks shall be a Magistrat for that yeare; which papers shall be receaued and told by one or more that shall be then chosen by the court and sworne to be faythfull therein; but in case there should not be sixe chosen as aforesaid, besids the Gouernor, out of those which are nominated, then he or they which haue the most
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written papers shall be a Magestrate or Magestrats for the ensueing yeare, to make vp the foresaid number.
3. It is Ordered, sentenced and decreed, that the Secre- tary shall not nominate any person, nor shall any person be chosen newly into the Magestracy which was not pro- pownded in some Generall Courte before, to be nominated the next Election; and to that end yt shall be lawfull for ech of the Townes aforesaid by their deputyes to nominate any two whom they conceaue fitte to be put to election ; and the Courte may ad so many more as they iudge requisitt.
4. It is Ordered, sentenced and decreed that noe person be chosen Gouernor aboue once in two yeares, and that the ^Gouernor be always a member of some approved con- gregation, and formerly of the Magestracy within this Jurisdiction; and all the Magestrats Freemen of this Comonwelth : and that no Magestrate or other publike officer shall execute any parte of his or their Office before they are seuerally sworne, which shall be done in the face of the Courte if they be present, and in case of absence by some deputed for that purpose.
5. It is Ordered, sentenced and decreed, that to the afore- said Courte of Election the seuerall Townes shall send their deputyes, and when the Elections are ended they may proceed in any publike searuice as at other Courts. Also the other Generall Courte in September shall be for makeing of lawes, and any other publike occation, which conserns the good of the Comonwelth.
6. It is Ordered, sentenced and decreed, that the Gouernor shall, ether by himself e or by the secretary, send out sumons to the Constables of euery Towne for the cauleing of these two standing Courts, on month at lest before their seuerall tymes: And also if the Gouernor and the gretest parte of the Magestrats see cause vppon any spetiall occation to call a generall Courte, they may giue order to the secretary soe to doe within f owerteene dayes wameing ; and if vrgent necessity so require, vppon a shorter notice, glueing suffi- cient grownds for yt to the deputyes when they meete, or els be questioned for the same; And if the Gouernor and Mayor parte of Magestrats shall ether neglect or refuse to call the two Generall standing Courts or ether of them, as
HC XLIU (3)
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also at other tymes when the occations of the Comonwelth require, the Freemen thereof, or the Mayor parte of them, shall petition to them soe to doe : if then yt be ether denyed or neglected the said Freemen or the Mayor parte of them shall haue power to giue order to the Constables of the seuerall Townes to doe the same, and so may meete togather, and chuse to themselues a Moderator, and may proceed to do any Acte of power, which any other Generall Courte may.
7. It is Ordered, sentenced and decreed that after there are warrants giuen out for any of the said Generall Courts, the Constable or Constables of ech Towne shall forthwith give notice distinctly to the inhabitants of the same, in some Publike Assembly or by goeing or sending from howse to howse, that at a place and tyme by him or them lymited and sett, they meet and assemble them selues togather to elect and chuse certen deputyes to be att the Generall Courte then following to agitate the afayres of the comonwelth; which said Deputyes shall be chosen by all that are ad- mitted Inhabitants in the seuerall Townes and haue taken the oath of fidellity; prouided that non be chosen a Deputy for any Generall Courte which is not a Freeman of this Comonwelth.
The foresaid deputyes shall be chosen in manner follow- ing: euery person that is present and quallified as before expressed, shall bring the names of such, written in seuerall papers, as they desire to haue chosen for that Imployment, and these 3 or 4, more or lesse, being the number agreed on to be chosen for that tyme, that haue greatest number of papers written for them shall be deputyes for that Courte; whose names shall be endorsed on the backe side of the warrant and returned into the Courte, with the Constable or Constables hand vnto the same.
8. It is Ordered, sentenced and decreed, that Wyndsor, Hartford and Wethersfield shall haue power, ech Towne, to send fower of their freemen as deputyes to euery Generall Courte; and whatsoeuer other Townes shall be hereafter added to this Jurisdiction, they shall send so many deputyes as the Courte shall judge meete, a resonable proportion to the number of Freemen that are in the said Townes being
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to be attended therein ; which deputyes shall have the power of the whole Towne to giue their voats and alowance to all such lawes and orders as may be for the publike good, and unto which the said Townes are to be bownd.
9. It is ordered and decreed, that the deputyes thus chosen shall haue power and liberty to appoynt a tyme and a place of meeting togather before any Generall Courte to aduise and consult of all such things as may conceme the good of the publike, as also to examine their owne Elections, whether according to the order, and if they or the gretest parte of them find any election to be illegall they may seclud such for present from their meeting, and retume the same and their resons to the Courte ; and if yt proue true, the Courte may fyne the parte or partyes so intruding and the Towne, if they see cause, and giue out a warrant to goe to a newe election in a legall way, either in parte or in whole. Also the said deputyes shall haue power to fyne any that shall be disorderly at their meetings, or for not coming in due tyme or place according to appoyntment; and they may retume the said fynes into the Courte if yt be refused to be paid, and the tresurer to take notice of yt, and to estreete or levy the same as he doth other fynes.
10. It is Ordered, sentenced and decreed, that euery Gen- erall Courte, except such as through neglecte of the Gouemor and the greatest parte of Magestrats the Freemen themselves doe call, shall consist of the Gouemor, or some one chosen to moderate the Court, and 4 other Magestrats at lest, with the mayor parte of tht deputyes of the seuerall Townes legally chosen ; and in case the Freemen or mayor parte of them, through neglect or refusal! of the Gouernor and mayor parte of the magestrats, shall call a Courte, yt shall consist of the mayor parte of Freemen that are present or their deputyes, with a Moderator chosen by them : In which said Generall Courts shall consist the supreme power of the Comonwelth, and they only shall haue power to make laws or repeale them, to graunt leuyes, to admitt of Freemen, dispose of lands vndisposed of, to seuerall Townes or per- sons, and also shall haue power to call ether Courte or Magestratc or any other person whatsoeuer into question for any misdemeanour, and may for just causes displace or
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deale otherwise according to the nature of the offence ; and also may deale in any other matter that concerns the good of this comon welth, excepte election of Magestrats, which shall be done by the whole boddy of Freemen.
In which Courte the Gouernour or Moderator shall haue power to order the Courte to giue liberty of spech, and silence vnceasonable and disorderly speakeings, to put all things to voate, and in case the vote be equall to haue the casting voice. But non of these Courts shall be adiorned or dissolued without the consent of the maior parte of the Court.
II. It is ordered, sentenced and decreed, that when any Generall Courte vppon the occations of the Comonwelth haue agreed vppon any sume or somes of mony to be leuyed vppon the seuerall Townes within this Jurisdiction, that a Comittee be chosen to sett out and appoynt what shall be the proportion of euery Towne to pay of the said leuy, provided the Comittees be made vp of an equall number out of each Towne.
14th January, 1638/ the 11 Orders abouesaid are voted.
The Oath of the Gouernor, for the [present.]
I J^. W, being nov^ chosen to be Gouernor within this Jurisdiction, for the yeare ensueing, and vntil a new be chosen, doe sweare by the greate and dreadfuU name of the cverliueing God, to promote the publicke good and peace of the same, according to the best of my skill; as also will mayntayne all lawfull priuiledges of this Comonwealth; as also that all wholsome lawes that are or shall be made by lawfull authority here established, be duly executed; and will further the execution of Justice according to the rule of Gods word; so helpe me God, in the name of the Lo: Jesus Christ.
The Oath of a Magestrate, for the present.
I, J^. I©, being chosen a Magestrate within this Jurisdic- tion for the yeare ensueing, doe sweare by the great and * 1638, old style; i639« new style.
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dreadfull name of the euerliueing God, to promote the publike good and peace of the same, according to the best of my skill, and that I will mayntayne all the lawfull priuiledges thereof according to my vnderstanding, as also assist in the execution of all such wholesome lawes as are made or shall be made by lawfull authority heare established, and will further the execution of Justice for the tyme aforesaid according to the righteous rule of Gods word; so helpe me God, etc.
THE BODY OF LIBERTIES
(1641)
[The Massachusetts " Body of Liberties," the first code of laws established in New England, was compiled by Nathaniel Ward (c. 1578 — 1652) a leading English Puritan minister, who had been trained as a lawyer. He came to the colony in 1634, and was for a time pastor at Ipswich. The " Liberties " were established by the Massachusetts General Court in December, 1641.]
The Liberties of the Massachusets Collonie IN New England, 1641
THE free fruition of such liberties, Immunities, and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and propor- tion, without impeachment, and infringement, hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both.
We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us. And to ratify them with our sollemne consent.
Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches, and Civill State to be respectively, impartiallie, and inviolably enjoyed and ob- served throughout our Jurisdiction for ever.
I. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of
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Authoritie, unlesse it be by vertue or equitie of some cx- presse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any partecular case by the word of God. And in Capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall Court.
2. Every person within this Jurisdiction, whether In- habitant or forreiner, shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another without partialitie or delay.
3. No man shall be urged to take any oath or subscribe any articles, covenants or remonstrance, of a publique and Civill nature, but such as the Generall Court hath con- sidered, allowed, and required.
4. No man shall be punished for not appearing at or before any Civill Assembly, Court, Councell, Magistrate, or Officer, nor for the omission of any office or service, if he shall be necessarily hindred by any apparent Act or providence of God, which he could neither foresee nor avoid. Provided that this law shall not prejudice any person of his just cost or damage, in any civill action.
5. No man shall be compelled to any publique worke or service unlesse the presse be grounded upon some act of the generall Court, and have reasonable allowance there- fore.
6. No man shall be pressed in person to any office, worke, warres, or other publique service, that is necessarily and suffitiently exempted by any naturall or personall impediment, as by want of yeares, greatnes of age, defect of minde, fayling of sences, or impotencie of Lymbes.
7. No man shall be compelled to goe out of the limits of this plantation upon any offensive warres which this Comonwealth or any of our friends or confederats shall volentarily undertake. But onely upon such vindictive and defensive warres in our owne behalfe or the behalfe of our freinds and confederats as shall be enterprized by the Counsell and consent of a Court generall, or by authority derived from the same.
8. No mans Cattel or goods of what kinde soever shall be
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pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford. And if his Cattel or goods shall perish or suffer damage in such service, the owner shall be suffitiently recompenced.
9. No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Coun- trie, and that for a short time.
10. All our lands and heritages shall be free from all fines and licenses upon Alienations, and from all hariotts, wardships. Liveries, Primer-seisins, yeare day and wast, Escheates, and forfeitures, upon the deaths of parents or Ancestors, be they naturall, casuall or Juditiall.
11. All persons which are of the age of 21 yeares, and of right understanding and meamories, whether excommuni- cate or condemned shall have full power and libertie to make there wills and testaments, and other lawfull aliena- tions of theire lands and estates.
12. Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or write- ing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition. Bill or information, whereof that meeting hath proper cogniz- ance, so it be done in convenient time, due order, and re- spective manner.
13. No man shall be rated here for any estaite or revenue he hath in England, or in any forreine partes till it be trans- ported hither.
14. Any Conveyance or Alienation of land or other estaite what so ever, made by any woman that is married, any childe under age, Ideott or distracted person, shall be good if it be passed and ratified by the consent of a generall Court.
15. All Co venous or fraudulent Alienations or Convey- ances of lands, tenements, or any heriditaments, shall be of no validitie to defeate any man from due debts or legacies, or from any just title, clame or possession, of that which is so fraudulently conveyed.
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1 6. Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.
17. Every man of or within this Jurisdiction shall have free libertie, notwithstanding any Civill power to remove both himselfe, and his familie at their pleasure out of the same, provided there be no legall impediment to the con- trarie.
Rites, Rules, and Liberties concerning Juditiall proceedings
18. No mans person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle or main- prise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.
19. If in a general Court any miscariage shall be amongst the Assistants when they are by themselves that may de- serve an Admonition or fine under 20 sh. it shall be ex- amined and sentenced amongst themselves. If amongst the Deputies when they are by themselves, it shall be ex- amined and sentenced amongst themselves, If it be when the whole Court is togeather, it shall be judged by the whole Court, and not severallie as before.
20. If any which are to sit as Judges in any other Court shall demeane themselves offensively in the Court, The rest of the Judges present shall have power to censure him for it, if the cause be of a high nature it shall be presented to and censured at the next superior Court.
21. In all cases where the first summons are not served six dayes before the Court, and the cause breifly specified in the warrant, where appearance is to be made by the partie summoned, it shall be at his libertie whether he will
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appeare or no, except all cases that are to be handled in Courts suddainly called, upon extraordinary occasions. In all cases where there appeares present and urgent cause any assistant or officer apointed shal have power to make our attaichments for the first summons.
22. No man in any suit or action against an other shall falsely pretend great debts or damages to vex his adversary, if it shall appeare any doth so, The Court shall have power to set a reasonable fine on his head.
23. No man shall be adjudged to pay for detaining any debt from any Crediter above eight pounds in the hundred for one yeare, And not above that rate proportionable for all somes what so ever, neither shall this be a coulour or countenance to allow any usurie amongst us contrarie to
, the law of god.
24. In all Trespasses or damages done to any man or men. If it can be proved to be done by the meere default of him or them to whome the trespasse is done. It shall be judged no trespasse, nor any damage given for it.
25. No Summons pleading Judgement, or any kinde of proceeding in Court or course of Justice shall be abated, arested or reversed upon any kinde of cercumstantiall er- rors or mistakes. If the person and cause be rightly under- stood and intended by the Court.
26. Every man that findeth himself e unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, Provided he give him noc fee or reward for his paines. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.
27. If any plantife shall give into any Court a declaration of his cause in writeing, The defendant shall also have libertie and time to give in his answer in writeing, And
' so in all further proceedings betwene partie and partie, So it doth not further hinder the dispach of Justice then the Court shall be willing unto.
28. The plantife in all Actions brought in any Court shall have libertie to withdraw his Action, or to be nonsuited before the Jurie hath given in their verdict, in which case
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he shall alwaies pay full cost and chardges to the defendant, and may afterwards renew his suite at an other Court if he please.
29. In all actions at law it shall be the libertie of the plantife and defendant by mutual consent to choose whether they will be tryed by the Bensh or by a Jurie, unlesse it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Criminall cases.
30. It shall, be in the libertie both of plantife and defen- dant, and likewise every delinquent (to be judged'by a Jurie) to challenge any of the Jurors. And if his challenge be found just and reasonable by the Bench, or the rest of the Jurie, as the challenger shall choose it shall be allowed him, and tales de cercumstantibus impaneled in their room.
31. In all cases where evidences is so obscure or defec- tive that the Jurie cannot clearely and safely give a positive verdict, whether it be a grand or petit Jurie, It shall have libertie to give a non Liquit, or a spetiall verdict, in which last, that is in a spetiall verdict, the Judgement of the cause shall be left to the Court, And all Jurors shall have libertie in matters of fact if they cannot finde the maine issue, yet to finde and present in their verdict so much as they can, If the Bench and Jurors shall so suffer at any time about their verdict that either of them cannot proceede with peac3 of conscience the case shall be referred to the Generall Court, who shall take the question from both and deter- mine it.
32. Every man shall have libertie to replevy his Cattell or goods impounded, distreined, seised, or extended, unlesse it be upon execution after Judgement, and in paiment of fines. Provided he puts in good securitie to prosecute his replevin, And to satisfie such demands as his Adversary shall recover against him in Law.
33. No mans person shall be arrested, or imprisoned upon execution or judgment for any debt or fine, If the law can finde competent meanes of satisfaction otherwise from his estaite, and if not his person may be arrested and imprisoned where he shall be kept at his owne charge, not the plantife's till satisfaction be made, unlesse the Court that had cogniz-
76 AMERICAN HISTORICAL DOCUMENTS
ance of the cause or some superior Court shall otherwise provide.
34. If any man shall be proved and Judged a common Barrator vexing others with unjust frequent and endlesse suites, It shall be in the power of Courts both to denie him the benefit of the law, and to punish him for his Barratry.
35. No mans corne nor hay that is in the feild or upon the Cart, nor his garden stuffe, nor any thing subject to present decay, shall be taken in any distresse, unles he that takes it doth presently bestow it where it may not be imbesled nor suffer spoile or decay, or give securitie to satisfie the worth thereof if it come to any harme.
36. It shall be in the libertie of every man cast condemned or sentenced in any cause in any Inferior Court, to make their appeale to the Court of Assistants, provided they tender their appeale and put in securitie to prosecute it, before the Court be ended wherein they were condemned. And within six dayes next ensuing put in good securitie before some Assistant to satisfie what his Adversarie shall recover against him; And if the cause be of a Criminall nature for his good behaviour, and appearance. And everie man shall have libertie to com- plaine to the Generall Court of any Injustice done him in any Court of Assistants or other.
37. In all cases where it appeares to the Court that the plantife hath wilingly and witingly done wronge to the de- fendant in commencing and prosecuting an action or com- plaint against him. They shall have power to impose upon him a proportionable fine to the use of the defendant or ac- cused person, for his false complaint or clamor.
38. Everie man shall have libertie to Record in the publique Rolles of any Court any Testimony given upon oath in the same Court, or before two Assistants, or any deede or evi- dence legally confirmed there to remaine in perpetuam rei memoriam, that is for perpetuall memoriall or evidence upon occasion.
39. In all actions both real and personall betweene partie and partie, the Court shall have power to respite execution for a convenient time, when in their prudence they see just cause so to doe.
40. No conveyance, Deede, or promise whatsoever shall be
AMERICAN HISTORICAL DOCUMENTS 77
of validitie, If it be gotten by Illegal violence, imprisonment, threatening, or any kinde of forcible compulsion called Dures.
41. Everie man that is to Answere for any criminall cause, whether he be in prison or imder bayle, his cause shall be heard and determined at the next Court that hath proper Cognizance thereof. And may be done without prejudice of Justice.
42. No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.
43. No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping, unles his crime be very shamefull, and his course of life vitious and profligate.
44. No man condemned to dye shall be put to death within fower dayes next after his condemnation, unles the Court see spetiall cause to the contrary, or in case of martiall law, , nor shall the body of any man so put to death be unburied 12 bowers unlesse it be in case of Anatomie.
45. No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case, where he is first fullie convicted by cleare and suffitient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspira- tours, or confederates with him. Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.
46. For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruel.
47. No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.
48. Every Inhabitant of the Countrie shall have free liber- tie to search and veewe any Rooles, Records, or Regesters of any Court or office except the Councell, And to have a trans- cript or exemplification thereof written examined, and signed by the hand of the officer of the office paying the appointed fees therefore.
49. No free man shall be compelled to serve upon Juries above two Courts in a yeare, except grand Jurie men, who shall hould two Courts together at the least.
50. All Jurors shall be chosen continuallie by the freemen of the Towne where they dwell.
18 AMERICAN HISTORICAL DOCUMENTS
5T. AH Associates selected at any time to Assist the As- sistants in Inferior Courts, shall be nominated by the Townes belonging to that Court, by orderly agreement amonge themselves.
52. Children, Idiots, Distracted persons, and all that are Btrangers, or new comers to our plantation, shall have such allowances and dispensations in any cause whether Criminal or other as religion and reason require.
53. The age of discretion for passing away of lands or such kindc of herediments, or for giveing, of votes, verdicts or Sentence in any Civill Courts or causes, shall be one and twentie yeares.
54. Whensoever any thing is to be put to vote, any sentence to be pronounced, or any other matter to be pro- posed, or read in any Cburt of Assembly, If the president or
• moderator thereof shall refuse to performe it, the Major
* parte of the members of that Court or Assembly shall have power to appoint any other meete man of them to do it. And if there be just cause to punish him that should and would not
55. In all suites or Actions in any Court, the plaintife shall have libertie to make all the titles and claims to that he snes for he can. And the Defendant shall have libertie to plead all the pleas he can in answere to them, and the Cburt shall judge according to the Intire evidence of all.
56. If any man shall behave himselfe offensively at any Towne meeting, the rest of the freemen then present, shall have power to sentence him for his offence. So be it the mulct or penaltie exceede not twentie shilings.
57. Whensoever any person shall come to any very sud- daine untimely and unnaturall death, Some assistant, or the Constables of that Towne shall forthwith sumon a Jury of twelve free men to inquire of the cause and manner of
, their death, and shall present a true verdict thereof to some tieere Assistant, or the next Court to be helde for that Towne upon their oath.
Liberties more peculiarlie concerning the free men
58. Civill Authoritie hath power and libertie to see the peac^ ordinances and Rules of Christ observed in every
AMERICAN HISTORICAL DOCUMENTS V8
church according to his word so it be done in a Civil! and not in an Ecclesiastical way.
59. Civill Authoritie hath power and libertie to deale with any Church member in a way of Civill Justice, notwithstand- ing any Church relation, office or interest
60. No church censure shall degrade or depose any man from any Civill dignitie, office, or Authoritie he shall have in the Commonwealth.
61. No Magestrate, Juror, Officer, or other man shall be bound to informe present or reveale any private crim or offence, wherein there is no perill or danger to this plan- tation or any member thereof, when any necessarie tye of conscience binds him to secresie grounded upon the word of god, unlesse it be in case of testimony lawfully required.
62. Any Shire or Towne shall have libertie to choose their Deputies whom and where they please for the Gen- erall Court So be it they be free men, and have taken there oath of fealtie, and Inhabiting in this Jurisdiction.
63. No Governor, Deputy Governor, Assistant, Associate, or grand Jury man at any Court, nor any Deputie for the Generall Court, shall at any time beare his owne chardges at any Court, but their necessary expences shall be defrayed either by the Towne or Shire on whose service they are, or by the Country in generall.
64. Everie Action betweene partie and partie, and pro- ceedings against delinquents in Criminall causes shall be briefly and destinctly entered on the RoUes of every Court by the Recorder thereof. That such actions be not after- wards brought againe to the vexation of any man.
65. No custome or prescription shall ever pervaile amongst us in any morall cause, our meaneing is maintaine any- thingc that can be proved to be morrallie sinful! by the word of god.
66. The Freemen of every Towneship shall have power to make such by laws and constitutions as may concerne the wellfare of their Towne, provided they be not of a Criminall, but onely of a prudential nature. And that their penalties exceede not 20 sh. for one offence. And that they be not repugnant to the publique laws and orders of
80 AMERICAN HISTORICAL DOCUMENTS
the Countrie. And if any Inhabitant shall neglect or re- fuse to observe them, they shall have power to levy the appointed penalties by distresse.
6^. It is the constant libertie of the free men of this plan- tation to choose yearly at the Court of Election out of the freemen all the General officers of this Jurisdiction. If they please to dischardge them at the day of Election by way of vote. They may do it without shewing cause. But if at any other generall Court, we hould it due justice, that the reasons thereof be alleadged and proved. By Generall offi- cers we meane, our Governor, Deputy Governor, Assistants, Treasurer, Generall of our warres. And our Admirall at Sea, and such as are or hereafter may be of the like gen- erall nature.
68. It is the libertie of the freemen to choose such dep- uties for the Generall Court out of themselves, either in their owne Townes or elsewhere as they judge fitest. And because we cannot foresee what varietie and weight of occa- sions may fall into future consideration, And what counsells we may stand in neede of, we decree. That the Deputies (to attend the Generall Court in the behalf e of the Coun- trie) shall not any time be stated or inacted, but from Court to Court, or at the most but for one yeare, that the Countrie may have an Annuall libertie to do in that case what is most behoofefull for the best welfaire thereof.
69. No Generall Court shall be desolved or adjourned without the consent of the Major parte thereof.
70. All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsell, or Civill Assembly, shall have full freedome to doe it according to their true judge- ments and Consciences, So it be done orderly and inofen- sively for the manner.
71. The Governor shall have a casting voice whensoever an Equi vote shall fall out in the Court of Assistants, or generall assembly, So shall the presedent or moderator have in all Civill Courts or Assemblies.
72. The Governor and Deputy Governor Joyntly con- senting or any three Assistants concurring in consent shall have power out of Court to reprive a condemned malefac- tour, till the next quarter or generall Court. The generall
AMERICAN HISTORICAL DOCUMENTS 81
Court onely shall have power to pardon a condemned male- factor.
73. The Generall Court hath libertie and Authoritie to send out any member of this Comanwealth of what qualitie, condition or office whatsoever into forreine parts about any publique message or Negotiation. Provided the partie sent be acquainted with the affaire he goeth about, and be willing to undertake the service.
74. The freemen of every Towne or Towneship, shall have full power to choose yearly or for lesse time out of themselves a convenient number of fitt men to order the planting or prudentiall occasions of that Towne, according to Instructions given them in writeing. Provided nothing be done by them contrary to the publique laws and orders of the Countrie, provided also the number of such select persons be not above nine.
75. It is and shall be the libertie of any member or mem- bers of any Court Councell or Civill Assembly in cases of makeing or executing any order or law, that properlie con- cerne religion, or any cause capitall, or warres, or Subscrip- tion to any publique Articles or Remonstrance, in case they cannot in Judgement and conscience consent to that way the Major vote or suffrage goes, to make their contra Re- monstrance or protestation in speech or writeing, and upon request to have their dissent recorded in the Rolles of that Court. So it be done Christianlie and respectively for the manner. And their dissent onely be entered without the reasons thereof, for the avoiding of tediousnes.
'j^). Whensoever any Jurie of trialls or Jurours are not cleare in their Judgments or consciences conserneing any cause wherein they are to give their verdict, They shall have libertie in open Court to advise with any man they thinkc fitt to resolve or direct them, before they give in their verdict.
yj. In all cases wherein any freeman is to give his vote, be it in point of Election, makeing constitutions and orders or passing sentence in any case of Judicature or the like, if he cannot see reason to give it positively one way or an other, he shall have libertie to be silent, and not pressed to a determined vote.
82 AMERICAN HISTORICAL DOCUMENTS
78. The Generall or publique Treasure or any parte there- of shall never be exspended but by the appointment of a Generall Court, nor any Shire Treasure, but by the appoint- ment of the freemen therof, nor any Towne Treasurie but by the freemen of that Township.
Liberties of Women
79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court she shall be relieved.
80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defenc t:pon her assalt. If there be any just cause of correction complaint shall be made to Authoritie assem- bled in some Court, fron which onely she shall receive it.
Liberties of Children
81. When parents dye intestate, the Elder sonne shall have a doble portion of his whole estate reall and personall, unlesse the Generall Court upon just cause alleadged shall judge otherwise.
82. When parents dye intestate haveing noe heires males of their bodies their Daughters shall inherit as Copartners, unles the Generall Court upon just reason shall judge other- wise.
83. If any parents shall wilfullie and unreasonably deny any childe timely or convenient mariage, or shall exercise any unnaturall severitie towards them, such children shall have free libertie to complaine to Authoritie for redresse.
84. No Orphan dureing their minoritie which was not committed to tuition or service by the parents in their life time, shall afterwards be absolutely disposed of by any kindred, freind, Executor, Towneship, or Church, nor by themselves without the consent of some Court, wherein two Assistants at least shall be present.
Liberties of Servants
85. If any servants shall flee from the Tiranny and cruel- tie of their masters to the howse of any freeman of the
AMERICAN HISTORICAL DOCUMENTS 83
same Towne, they shall be there protected and susteyned till due order be taken for their relife. Provided due notice thereof be speedily given to their maisters from whom they fled. And the next Assistant or Constable where the partie flying is harboured.
86. No servant shall be put of for above a yeare to any other neither in the life time of their maister nor after their death by their Executors or Administrators unlesse it be by consent of Authoritie assembled in some Court or two Assistants.
87. If any man smite out the eye or tooth of his man- servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he shall let them goe free from his service. And shall have such further recompense as the Court shall allow him.
88. Servants that have served deligentlie and faithfully to the benefitt of their maisters seaven yearse, shall not be sent away emptie. And if any have bene unfaithfull, negli- gent or unprofitable in their service, nothwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.
Liberties of Forreiners and Strangers
89. If any people of other Nations professing the true Christian Religion shall flee to us from the Tiranny or op- pression of their persecutors, or from famyne, warres, or the like necessary and compulsarie cause, They shall be en- tertayned and succoured amongst us, according to that power and prudence, god shall give us.
90. If any ships or other vessels, be it freind or enemy, shall suffer shipwrack upon our Coast, there shall be no violence or wrong offerred to their persons or goods. But their persons shall be harboured, and relieved, and their goods preserved in safety till Authoritie may be certified thereof, and shall take further order therein.
91. There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawfull Captives taken in just warres, and such strangers as willingly sella themselves
84 AMERICAN HISTORICAL DOCUMENTS
or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israeli concerning such persons doeth morally require. This ex- empts none from servitude who shall be Judged thereto by Authoritie.
Off the Bruite Creature
92. No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man's use.
93. If any man shall have occasion to leade or drive Cattel from place to place that is far of, so that they be weary, or hungry, or fall sick, or lambe. It shall be lawful to rest or refresh them, for competant time, in any open place that is not Corne, meadow, or inclosed for some pecu- liar use.
94. Capital! Laws
If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.*
2.
If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) they shall be put to death.'
3.
If any person shall Blaspheme the name of god, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.'
4-
If any person committ any wilfull murther, which is man- slaughter, committed upon premeditated malice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death."
1 Deut. xiii. 6, to. Deut. xvii. 2, 6. Ex. xxii. 20. >Ex. xxii. 18. Lev. XX. 27. Deut. xviii. 10. * Lev. xxiv. IS, 16. *Ex. xxi. 32. Numb. xxxv. 13, 14. 30. 3^'
AMERICAN HISTORICAL DOCUMENTS 85
5. If any person slayeth an other suddaienly in his anger or Crueltie of passion, he shall be put to death."
6.
If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death."
7-
If any man or woeman shall lye with any beaste or bruite creature by Carnall Copulation, They shall surely be put to death. And the beast shall be slaine, and buried and not eaten.*
8.
If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death.*
9.
If any person committeth Adultery with a maried or espoused wife, the Adulterer and Adulteresse shall surely be put to death.*
10. If any man stealeth a man or mankinde, he shall surely be put to death."
IL If any man rise up by false witnes, wittingly and of purpose to take away any mans life, he shall be put to death."
12. If any man shall conspire and attempt any invasion, in- surrection, or publique rebellion against our commonwealth, or shall indeavour to surprize any Towne or Townes, fort or
BNumb. XXV. 20, 21. Lev. xxiv. 17. * Ex. xxi. 14. ^ Lev. xx. 15, 16-
8Lev XX n » Lev. xx. 19, and 18, 20. Deut. xxii. 23, 24.
"Ex. xxi. 16. "Deut. xix. 16, 18, 19.
86 AMERICAN HISTORICAL DOCUMENTS
forts therein, or shall treacherously and perfediouslie at- tempt the alteration and subversion of our frame of politic or Government fundamentallie, he shall be put to death.
95. A Declaration of the Liberties the Lord Jesus hath given to the Churches
All the people of god within this Jurisdiction who are not in a church way, and be orthodox in Judgement, and not scandalous in life, shall have full libertie to gather them- selves into a Church Estaite. Provided they doe it in a Chris- tian way, with due observation of the rules of Christ re- vealed in his word.
2.
Every Church hath full libertie to exercise all the ordi- nances of god» according to the rules of scripture.
3.
Every Church hath free libertie of Election and ordina- tion of all their officers from time to time, provided they be able, pious and orthodox.
4. Every Church hath free libertie of Admission, Recom- mendation, Dismission, and Expulsion, or deposall of their officers, and members, upon due cause, with free exercise of the Discipline and Censures of Christ according to the rules of his word.
5. No Injunctions are to be put upon any Church, Church officers or member in point of Doctrine, worship or Discip- line, whether for substance or cercumstance besides the In- stitutions of the lord.
6.
Every Church of Christ hath freedome to celebrate dayes of fasting and prayer, and of thanksgiveing according to the word of god.
AMERICAN HISTORICAL DOCUMENTS 87
7. The Elders of Churches have free libertie to meete month- ly, Quarterly, or otherwise, in convenient numbers and places, for conferences, and consultations about Christian and Church questions and occasions.
8.
All Churches have libertie to deale with any of their members in a church way that are in the hand of Justice. So it be not to retard or hinder the course thereof.
9.
Every Church hath libertie to deale with any magestrate, Deputie of Court or other ofBcer what soe ever that is a member in a church way in case of apparent and just offence given in their places, so it be done with due observance and respect.
10.
Wee allowe private meetings for edification in religion amongst Christians of all sortes of people. So it be without just offence for number, time, place, and other cercum- stances.
II.
For the preventing and removeing of errour and offence that may grow and spread in any of the Churches in this Jurisdiction, And for the preserving of trueith and peace in the severall churches within themselves, and for the main- tenance and exercise of brotherly communion, amongst all the churches in the Countrie, It is allowed and ratified, by the Authoritie of this Generall Court as a lawful libertie of the Churches of Christ. That once in every month of the yeare (when the season will beare it) It shall be lawfull for the minesters and Elders, of the Churches neere adjoyne- ing together, with any other of the breetheren with the con- sent of the churches to assemble by course in each severall Church one after an other. To the intent after the preaching of the word by such a minister as shall be requested thereto
88 AMERICAN HISTORICAL DOCUMENTS
by the Elders of the church where the Assembly is held, The rest of the day may be spent in publique Christian Conference about the discussing and resolveing of any such doubts and cases of conscience concerning matter of doc- trine or worship or government of the church as shall be propounded by any of the Breetheren of that church, will leave also to any other Brother to propound his objections or answeres for further satisfaction according to the word of god. Provided that the whole action be guided and moder- ated by the Elders of the Church where the Assemblie is helde, or by such others as they shall appoint. And that no thing be concluded and imposed by way of Authoritie from one or more churches upon an other, but onely by way of Brotherly conference and consultations. That the trueth may be searched out to the satisfying of every mans con- science in the sight of god according his worde. And be- cause such an Assembly and the worke thereof can not be duly attended to if other lectures be held in the same weeke. It is therefore agreed with the consent of the Churches. That in that weeke ^hen such an Assembly is held, All the lectures in all the neighbouring Churches for that weeke shall be forborne. That so the publique service of Christ in this more solemne Assembly may be transacted with greater deligence and attention.*
96. Howsoever these above specified rites, freedomes Im- munities, Authorites and priveledges, both Civill and Eccle- siastical are expressed onely under the name and title of Liberties, and not in the exact forme of Laws or Statutes, yet we do with one consent fullie Authorise, and earnestly intreate all that are and shall be in Authoritie to consider them as laws, and not to faile to inflict condigne and pro- portionable punishments upon every man impartiallie, that shall infringe or violate any of them.
97. Wee likewise give full power and libertie to any per- son that shall at any time be denyed or deprived of any of them, to commence and prosecute their suite. Complaint or action against any man that shall so doe in any Court that hath proper Cognizance or judicature thereof.
98. Lastly because our dutie and desire is to do nothing
AMERICAN HISTORICAL DOCUMENTS 89
suddainlie which fundamentally concerne us, we decree that these rites and liberties, shall be Audably read and deliber- ately weighed at every Generall Court that shall be held, within three yeares next insueing. And such of them as shall not be altered or repealed they shall stand so ratified, That no man shall infringe them without due punishment.
And if any Generall Court within these next thre yeares shall faile or forget to reade and consider them as abovesaid. The Governor and Deputy Governor for the time being, and every Assistant present at such Courts, shall forfeite 20sh. a man, and everie Deputie losh. a man for each neglect, which shall be paid out of their proper estate, and not by the Country or the Townes which choose them, and whenso- ever there shall arise any question in any Court amonge the Assistants and Associates thereof about the explanation of these Rites and liberties, The Generall Court onely shall have power to interprett them.
ARBITRARY GOVERNMENT DESCRIBED
AND THE
GOVERNMENT of the MASSACHUSETTS
VINDICATED FROM THAT ASPERSION
BY JOHN WINTHROP THEN DEPUTY-GOVERNOR OF THE COMMONWEALTH (1644)
[In 1644, a dispute arose in Massachusetts between the magistrates and the deputies as to the respective powers of the two branches of the legislature, the deputies claiming judicial authority. Win- throp's opposition to this claim brought upon him and other magis- trates the charge of arbitrary government; and in order to clear up the situation he drew up the following document. It is important not only for its presentation of Winthrop's personal views, but for the light it throws upon the origins of the political institutions of the Commonwealth.]
A RBITRARY Government is where a people have men
Z\ set over them, without their choice or allowance; -^ ^ who have power to govern them, and judge their causes without a rule.
jGod only hath this prerogative; whose sovereignty is absolute, and whose will is a perfect rule, and reason itself; so as for man to usurp such authority, is tyranny, and impiety.
Where the people have liberty to admit or reject their governors, and to require the rule by which they shall be governed and judged, this is not an arbitrary government.
That the Government of the Massachusetts is such will appear (i) by the foundation of it; (2) by the positive laws thereof; (3) by the constant practice which proves a custom
90
AMERICAN HISTORICAL DOCUMENTS 91
than which (when it is for common good) there is no law of man more inviolable.
I. The foundation of this Government is the King's Let- ters Patents: this gave them their form and being, in dis- posing a certain number of persons into a body politic; whereby they became then (in such a politic respect) as one single person, consisting of several members, and ap- point to each its proper place: it regulates their power and motions as might best conduce to the preservation and good of the whole body.
The parties or members of this body politic are reduced! under two kinds, Governor and Company, or Freemen : to the Governor it adds a Deputy, and eighteen Assistants: in these is the power of authority placed, under the name of the (Governor (not as a person, but as a State) and in the other (which is named the Company) is placed the power of liberty : — ^which is not a bare passive capacity of freedom, or immunity, but such a liberty as hath power to act upon the chiefest means of its own welfare (yet in a way of liberty, not of authority) and that under two general heads, election and counsel: (i) they have liberty to elect yearly (or oftener if occasion require) all their Governors and other their gen- eral officers, viz., such as should have influence (either judi- cial or ministerial) into all parts of the jurisdiction; (2) they have liberty of counsel in all the General Assemblies, so as without their counsel and consent no laws, decrees, or orders, of any public nature or concernment, not any taxes, imposi- tions, impresses, or other burdens of what kind soever, can be imposed upon them, their families or estates, by any authority in the Government : which notwithstanding remains still a distinct member, even in those General Assemblies: otherwise our state should be a mere Democratic, if all were Governors or magistrates, and none left to be an object of government, which cannot fall out in any kind of Aris- tocratic.
To make this clear, we will set down the very words of the Patent.
" (i) The words of Constitution of this body politic are these, A, B, C, and all such others as shall hereafter be admitted and made free of the Company and society here-
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after mentioned shall be, etc., one body politic and Corporate, in fact and name, by the name of the Governor and Com- pany of the Massachusetts Bay in New England. And that from henceforth forever there shall be one Governor, one Deputy-Governor, and eighteen Assistants of the same Com- pany, to be from time to time, constituted, elected, and chosen, out of the Freemen of the said Company for the time being; in such manner and form, as hereafter in these presents is expressed, which said officers shall apply them- selves to take care for the best disposing and ordering of the great business and affairs of, for, and concerning, the said lands and premises hereby mentioned to be granted, and the plantation thereof, and the government of the people there."
(2) The distribution of power follows, in these words ensuing: — ''That the Government of the said Company for the time being or, in his absence by occasion of sickness or otherwise, the Deputy-Governor for the time being, shall have authority from time to time, upon all occasions, to give order, for the assembling of the said Company, and calling them together, to consult and advise of the businesses and affairs of the said Company.
" And that the said Governor, Deputy-Governor, and As- sistants of the said Company for the time being shall or may once every month or oftener at their pleasures, assemble and hold and keep a Court, or Assembly of themselves, for the better ordering and directing of their affairs:
" And that any seven, or more persons of the Assistants, together with the Governor or Deputy-Governor so assem- bled, shall be said, taken, held, and reputed to be, and shall be, a full and sufficient Court or Assembly of the said Com- pany, for the handling, ordering, and dispatching of all such businesses and occurrents, as shall from time to time happen touching or concerning the said Company or plantation."
Then follows a clause, whereby liberty is granted to hold four general Courts in the year, wherein (with the advice and consent of the major part of the freemen) they may admit others to the freedom of the Company, they may make all subordinate officers, and make laws and constitutions, for their welfare and good government.
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Then followeth a clause for the annual election of all their officers in these words ensuing: —
" That yearly once in the year forever, namely on the last Wednesday in Easter Term yearly, the Governor, Deputy- governor, and Assistants of the said Company shall be in the General Court or Assembly, to be held for that day or time, newly chosen for the year ensuing, by such greater part of the said Company, for the time being, then and there present as is aforesaid."
Then follows another branch, whereby, in any of their General Courts, any insufficient, or delinquent Officer (of what sort soever) may be removed and another forthwith put in place.
The last clause is for the governing of the inhabitants within the plantation. For it being the manner for such as procured patents for Virginia, Bermudas, and the West Indies, to keep the chief government in the hands of the Company residing in England (and so this was intended and with much difficulty we got it abscinded) this clause is in- serted in this and all other patents whereby the Company in England might establish a Government and Officers here in any form used in England, as Governor and Council, Justices of the Peace, Mayor, Bailiffs, etc.; and accordingly Mr. Endicott and others with him, were established a Governor and Council here, before the Government was transferred hither: and that clause is expressed in these words : —
" It shall and may be lawful, to and for the Governor, etc., and such of the Freemen of the said Company for the time being, as shall be assembled in any of their ^General Courts aforesaid, or in any other Courts to be specially summoned and assembled for that purpose, or the greater part of them, whereof the Governor or Deputy-Governor, and six of the Assistants to be always seven; from time to time, to make, ordain, and establish all manner of wholesome and reason- able orders, laws, statutes, and ordinances, directions, and instructions, not contrary to this our Realm of England : as well for settling of the forms and ceremonies of government and magistracy, fit and necessary for the said plantation, and inhabitants there, and for naming and styling of all sorts of
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officers, both superior and inferior, which they shall find needful for that Government and plantation; and the dis- tinguishing and setting forth of the several duties, powers, and limits of every such office, etc., for disposing and order- ing the election of such of the said officers as shall be an- nual, etc., and for setting down forms of oaths and for ministering of them, etc., and for the directing, ruling, and disposing of all matters and things, whereby our said people inhabitants there, may be so religiously, peaceably, and civilly governed, etc.'*
Thus it appears that this Government is not arbitrary in the foundation of it, but regulated in all the parts of it.
(2) It will be yet further found by the positive laws thereof :
And first by that of (3) 14 — 1634; where it is declared, that the General Court only may make freemen ; make laws ; choose General Officers, as Governor, Deputy, Assistants, Treasurer, etc. ; remove such ; set out their power and duty ; raise moneys ; dispose of lands in proprieties ; not to be dis- solved but by consent of the major part. The freemen of the several towns may send their deputies to every General Court who may do all that the body of freemen might do, except in election of magistrates and officers.
And in the sixty-seventh Liberty it is thus described, viz. — •• It IS the constant liberty of the freemen, to choose yearly, at the Court of Election, out of the freemen, all the general officers of this jurisdiction. If they please to dischargr them at the Court of Elections, by vote, they may do it without showing cause ; but if at any other General Court, we hold it due justice, that the reasons thereof be alleged and proved. By general officers, we mean our Governor, Deputy-Gov- ernor, Assistants, Treasurer, General of our wars, and our Admiral at sea; and such as are, or may be hereafter, or like general nature."
(3) According to these fundamental rules and positive laws, the course of government hath been carried on in the practice of public administrations to this very day, and where any considerable obliquity hath been discerned, it hath been soon brought to the rule and redressed; for it is not possible in the infancy of a plantation, subject to so many
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and variable occurrents to hold so exactly to rules, as a state is once settled.
By what hath been already manifested, this Government is freed from any semblance of arbitrariness either in the form of it, or the general officers in it, which is the first branch in the description of Arbitrary Government
The other branch, (wherein the main question lies) is concerning the rule so as if it shall appear also, that the Governor and other officers are prescribed such a rule, as may be required of them in all their administrations, then it must needs be granted, that this Government (even in the present state thereof) is, in no respect, arbitrary.
I might show a clear rule out of the Patent itself, but see- ing it is more particularly (and as it were memhratim) de- lineated in later laws, I will begin there, (3) 25—1636. It was ordered, that until a body of fundamental laws (agree- able to the Word of God) were established, all causes should be heard and determined, according to the laws already in force ; and where no law is, there as near the law of God a» may be. To omit many particular laws enacted upon occasion, I will set down only the first authority in the Liber- ties, which is as here followeth: — ^**No man*s life shall be taken away; no man's honor or good name shall be stained; no man s person shall be arrested, restrained, banished, dis- membered, or any ways punished; no man shall be deprived ot his wife or children; no man's goods or estate shall be taken away from him, or any way damaged, under colour of law or countenance of authority, unless it be by the virtue or equity of some express law of the country, warranting the same, establish^ by a General Court and sufficiently published; or, in case of the defect of a law in any particular case, by the word of God, and in capital cases, or In cases concerning dismembering or banishment, according to that word, to be judged by the General Court**
By these it appears, that the officers of this body politic have a rule to walk by in all their administrations, which rule is the Word of God, and such conclusions and deduc- tions as are, or shall be, regularly drawn from thence.
AH commonwealths have had some principles, or funda- mentals, from which they have framed deductions to par-
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ticular cases, as occasion hath required. And though no Commonwealth ever had, or can have, a particular positive rule to dispense power or justice by in every single case, yet where the fundamentals or general rule hold forth such direction as no great damage or injury can befall, either the whole, or any particular part, by any unjust sentence or dis- orderly proceeding, without manifest breach of such general rule, there the rule may be required, and so the Government is regular and not arbitrary.
The fundamentals which God gave to the Commonwealth of Israel were a sufficient rule to them, to guide all their affairs ; we having the same, with all the additions, explana- tions, and deductions, which have followed; it is not possible we should want a rule in any case, if God give wisdom to discern it.
There are some few cases only (beside the capitals) wherein the penalty is prescribed; and the Lord could have done the like in others, if He had so pleased; but having appointed governments upon earth, to be His vicegerents. He hath given them those few as presidents to direct them and to exercise His gifts in them (Deut xvii; 9, 10, 11). In the most difficult cases, the judges in supreme authority were to show the sentence of the law; whence three things may be observed: (i) this sentence was to be declared out of the law established, though not obvious to common under- standing; (2) this was to be expected in that ordinance; therefore (v. 19,) the King was to have a copy of the law, and to read them all the d?ys of his life; (3) such a sentence was not ordained to be provided before the case fell out, but pro re nata, when occasion required, jGod promised to be present in his own ordinance, to improve such gifts as he should please to confer upon such as he should call to place of government. In the Scripture there are some forms of prayers and of sermons set down ; yet no man will infer from thence that ministers should have sermons and prayers pre- scribed them for every occasion; for that would destroy the ordinance of the ministry, i. e., a reading priest might serve in that office, without any learning or other gifts of the Spirit. So if all penalties were prescribed, the jury should state the case, and the book hold forth the sentence, and any
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schoolboy might pronounce it; then what need were there of any special wisdom, learning, courage, zeal or faithful- ness in a judge?
This being so great a question now on foot, about prescript penalties it will be of use to search as deep into it as we may by the light of Scripture, approved patterns, and other ra- tional arguments; not tying our discourse to method, but laying down things as they come to hand.
England in the right constitution, is not an Arbitrary Gov- ernment, nor is ours of the Massachusetts; yet juries, both there and here, give damages which (in vulgar sense) are arbitrary, in most cases: as in actions of slander, trespass, battery, breach of covenant, etc.; all which concern the people's liberties no less than fines and other penalties; And if twelve men, who have no calling to office, may (in ex- pectation of God's assistance) be trusted with men's estates in a way of distributive justice without a prescript rule, etc., why may not those whose calling and office hath promise of assistance, have like trust reposed in them, in vindictive justice?
In the Liberties enacted here of purpose to prevent Ar- bitrary Government, there are near forty Laws, to the viola- tion whereof no penalty is prescribed, nor was ever moved.
God may pronounce sentence against an offender, before the offence be committed, both by his absolute sovereignty, and also because he foreseeth all facts, with all their cir- cumstances ; and besides the least degree of the same offence deserves more than that full punishment before his Justice, but man must proceed according to his Commission ; by which he cannot sentence another before he hath offended; and the offence examined, proved, laid to the rule, and weighed by all considerable circumstances, and liberty given to the party to answer for himself : nor is there anything more prejudicial to a subject's liberty, than to be sentenced before his cause be heard.
England is a state of long standing, yet we have had more positive and more wholesome laws enacted in our short time than they had in many hundred years. They have indeed some laws with prescribed penalties annexed, but they are for the most part so small as do undervalue the least degree
HC XLUI (4)
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of those offences; they have twelve pence for an Oath: five shillings for drunkenness, etc.; but for all great offences and misdemeanors, as perjury, forgery, conspiracies, cozen- ages, oppression, riot, batteries, and other breaches of the peace, etc., there is no penalty prescribed; how it is in other states in Europe, I cannot relate (because we know not their laws) otherwise than what appears in their histories, where we find some great offences punished by the discretion of their judges.
Justice ought to render to every man according to his deservings, eye for eye, hand for hand, etc.; and (Luke xii. 47) the servant, who transgressed against knowledge was to be beaten with more stripes than he who transgressed of ignorance. If we had a law, that every lie should be pun- ished forty shillings, and two offenders should be convict at the same time, the one a youth of honest conversation, never known to lie before; and now, suddenly surprised with fear of some discredit, had told a lie wherein was no danger of harm to any other; the other an old notorious liar, and his lie contrived of purpose for a pernicious end : it were not just to punish both these alike. As forty shillings were too little for the one, so it were too much for the other. Besides, pen- alties (we know) coming of pcBna, should cause pain or grief to the offenders. It must be an affliction, yet not a destruc- tion except in capital or other heinous crimes: but in pre- script penalties, authority shoots at adventure; if the same penalty hits a rich man, it pains him not, it is no affliction to him; but if it lights upon a poor man, it breaks his back.
Every law must be just in every part of it, but if the penalty annexed be unjust, how can it be held forth as a just law ? To prescribe a penalty must be by some rule, otherwise it is an usurpation of God's prerogative ; but where the law- makers, or declarers, cannot find a rule for prescribing a penalty, if it come before the judges pro re nata, there it is determinable by a certain rule, viz., by an ordinance set up of God for that purpose, which hath a sure promise of Divine assistance (Exo. xxi. 22; Deut. xvi. 18). "Judges and Officers shalt thou make, etc., and they shall judge the people with just judgment." (Deut. xxv. i, 2, and xvii. 9, 10, 11). If a Law were made that if any man were found
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drunken he should be punished by the judges according to the merit of his offence, this is a just law, because it is warranted by a rule ; but if a certain penalty were prescribed, this would not be just, because it wants a rule, but when such a case is brought before the judges, and the quality of the person and other circumstances considered, they shall find a rule to judge by; as if Nabal, and Uriah, and one of the strong drunkards of Ephraim, were all three together ac- cused before the judges for drunkenness, they could so pro- portion their several sentences, according to the several natures and degrees of their offences, as a just and divine sentence might appear in them all; for a divine sentence is in the lips of the King, his mouth transgresseth not in judg- ment (Prov. xvi.), but no such promise was ever made to a paper sentence of human authority or invention. He who hath promised His servants to teach them what to answer, even in that hour when they shall be brought before judg- ment seats, etc., will also teach his ministers, the judges, what sentence to pronounce, if they will also observe His word and trust in Him. " Care not for the morrow, etc." is a rule of general extent, to all cases where our providence may either cross with some rule or ordinance of His, or may occasion us to rely more upon our own strengths and means, than upon His grace and blessing. In the sentence which Solomon gave between the two harlots (i Kings iii. 28), it is said that all Israel heard of the judgment which the King had judged; and they feared the King, for they saw that the wisdom of God was in him to do judgment. See here, how the wisdom of God was glorified, and the authority of the judge strengthened by this sentence; whereas in men's pre- script sentences neither of these can be attained; but if the sentence hit right, all is ascribed to the wisdom of our an- cestors ; if otherwise, it is endured as a necessary evil, since it may not be altered.
Prescript penalties take away the use of admonition, which is also a divine sentence and an ordinance of God, warranted by Scripture, as appears in Solomon's admonition to Ado- nijah, and Nehemiah's to those that break the Sabbath (Ecel. xii. 11, 12) ; "The words of the wise are as goads, and as nails fastened by the masters of assemblies — ^by these
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(my son) be admonished." (Prov. xxix. i; Isa. xi. 4; Prov. xvii. 10). "A reproof entereth more into a wise man, than a hundred stripes into a fool."
Judges are Gods upon earth; therefore, in their adminis- trations, they are to hold forth the wisdom and mercy of God, (which are His attributes) as well as His justice, as occasion shall require either in respect of the quality of the person, or for a more general good, or evident repentance, in some cases of less public consequence, or avoiding im- minent danger to the State, and such like prevalent con- siderations. (Exo. xxii. 8, 9). For theft and such like trespasses, double restitution was appointed by the Law ; but (Lev. vi. 2, 5) in such cases, if the party confessed his sin and brought his offering, he should only restore the principal and add a fifth part thereto. Adultery and incest deserved death, by the Law, in Jacob's time (as appears by Judah his sentence, in the case of Tamar) ; yet Reuben was punished only with the loss of his birthright, because he was a patri- arch. David his life was not taken away for his adultery and murder (but he was otherwise punished) in respect of public interest and advantage ; he was valued at ten thousand common men. Bathsheba was not put to death for her adultery, because the King's desire had with her the force of a law. Abiathar was not put to death for his treason, be- cause of his former good service and faithfulness. Shemei was reprieved for a time, and had his pardon in his own power, because of his profession of repentance in such a season. Those which broke the Sabbath in Nehemiah his time, were not put to death, but first admonished, because the state was not settled, etc. Joab was not put to death for his murders in David's time, for avoiding imminent public danger; the sons of Zeruiah had the advantage of David, by their interest in the men of war; and the commonwealth could not yet spare them. But if judges be tied to a pre- script punishment, and no liberty left for dispensation or mitigation in any case, there is no place left for wisdom or mercy; whereas Solomon sayeth (Prov. xx. 28): "Mercy and truth preserve the King, and his throne is upholden by mercy."
I would know by what rule we may take upon us, to pre-
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scribe penalties, where God prescribes none. If it be an- swered, "From God's example," I might reply (i), God prescribes none except capital, but only in such cases as are between party and party, and that is rather in a way of satis- faction to the party wronged, than to justice and intention. (2), God's examples are not warrants for us to go against God's rules; our rule is to give a just sentence, which we cannot do (in most cases) before the offence is committed, etc. Five shillings now may be more than twenty shillings hereafter, and e contra. If examples in Scripture be warrant for us to proceed against rule, then we may pass by murders, adulteries, idolatries, etc., without capital punishments; then we might put the children to death for parents' offences, etc.
If we should inquire also of the end of prescribing penal- ties, it can be no other but this, to prevent oppression of the people by unjust sentences; then I am again to seek of a rule to weaken the power and justice of an ordinance of God, through distrust of His providence, and promise of assistance in His own ordinance. Who must give the lawmakers wisdom, etc., to prescribe sentences? Must not God? And may we not then trust Him to give as much wisdom, etc., to such judges as He shall set up after us? It is said when they had judges by God's appointment, God was with the judge. So may we still believe that if our posterity all choose judges according to God, He will be with the judges in time to come, as well as with the present.
It may be further demanded, what power we have over the property and estates of the succeeding generations? If we should now prescribe where our posterity should dwell, what quantities of land they should till, what places they should tend unto, what diet they should use, what clothes they should wear, etc., by what rule could we chal lenge this power? Yet we have example for some of these in Scripture, as of Jonadab, the son of Rechab, etc.; but no man will take these as warrants for us to lay such in- junctions upon those which come after us, because they are to have the same interest and freedom in their estates and properties that we have in ours.
And for preventing of oppression, etc., is there no way to help that but by breach of rule? Shall we run int.
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manifest injustice for fear of I know not what future danger of it? Is there not a clear way of help in such cases, by appeal, or petition, to the highest authority? If this will not relieve in a particular case, we shall then be in a very ill case for all our prescript penalties. Be- sides, there may be such a general law made (as in Magna Charta) that may prevent the overthrowing of men's es- tates, or lands, etc., by fines, etc., (and I think it is needful, as any law of Liberty we have), whereby the judges may be restrained within certain limits, which, (if occasion should require to exceed,) may be referred to the General Court; and in capital punishments, a liberty in such and such cases, to redeem them at a certain rate. This would sufficiently assure the proper persons and estates from any great oppression, if, withal, our Courts of Judicature were kept but by three or five magistrates at most, which may well be ordered, without any deviation from our Patent. And So the greater number of magistrates should be free from engagement in any case which might come to a review upon appeal or petition.
It is an error so to conceit of laws as if they could tiot be perfect without penalties annexed, for they are as truly distinct as light and darkness. Law was created with and in man, and so is natural to him, but penalty is posi- tive and accidental. Law is bonum simpliciter, but poena is simpliciter malum in subiecto; therefore laws may be de- clared and given without any penalties annexed.
Isa. X, I : Woe to them that decree unrighteous decrees : and write grievousness, which they have prescribed; so that where the penalty proves grievous by the unrighteousness of a prescript decree, it will draw a woe after it, as well as unrighteous sentences; (Deut. xxv, 15) "Thou shall have a perfect and just weight and measure." If God be so strict in commutative justice that every act therein must be by a just and perfect rule, what warrant have we to think that we may dispense distributive or vindictive justice to our brethren by guess, when we pre- scribe a certain measure to an uncertain merit?
But it will be objected, volenti non fit injuria; the peo- ple giving us power to make laws to bind them, they do
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implicitly give their consent to them. To this it may be answered that where they put themselves into our power to bind them to laws and penalties, they can intend no other but such as are just and righteous; and although their implicit consent may bind them to outward obedience, yet it neither ties them to satisfaction, nor frees such law- makers from unrighteousness, nor the law itself from in- justice, nor will such a law be a sufificient warrant to the conscience of the judge, to pronounce such a sentence as he knows to be apparently disproportionable to the offence brought before him.
Although my argument conclude against prescript penal- ties indefinitely, yet I do not deny but they may be lawful in some cases; for an universal affirmative position may be true, though it comprehend not every particular, as when we say, "All the country was rated to such a charge," no man will conceive that every person and every woman, etc., was rated; and when we say such an one was cast out by the whole church, this is a true speech (to common intendment) though every particular member did not con- sent. Where any penalty may be prescribed by a rule, so as the judge may pronounce a just sentence, I have formerly and shall still join in it.
We will now answer such objections as are made against the liberty required to be left to judges in their sentences.
1, ob. Judges are subject to temptations, if their sentences be not prescribed.
Ans. I. We may not transgress rules, to avoid tempta- tions ; for God will have His servants exercised with tempta- tions, that the power of His grace may be made mani- fest in man's infirmity. A master will not send his servant about his business in a dark night, to avoid temptations of ill company or the like which he may possibly meet with in the day time; nor will any Christian man take in his corn or hay before it be ready, for avoiding a tempta- tion of taking it in upon the Sabbath. We do not forbid wine to be brought to us, though we know it is a great occasion of temptation to sin.
2. Those who make laws and prescribe penalties are also men subject to temptations, and may also miscarry through
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ignorance, heedlessness, or sinister respects; and it is not hard to prove, that the lawmakers, in all states, have com- mitted more, and more pernicious errors than the judges, and there is good reason for it: (i) they, supposing them- selves tied to no rule, nor liable to any account, are in the more danger of being mislead; (2) he who prescribes a punishment in a case wherein no person stands before him to be judged, cannot be so wary of shedding innocent blood, or sparing a guilty person, or committing other in- justice, as the judge who hath the person and cause before him. When Saul prescribed that capital sentence against such as should taste aught before night, if Jonathan's case had then been before him, he could have judged otherwise. (3) Lawmakers have not so clear a calling in prescribing penalties, as judges have in {Massing sentences, and there- fore there cannot be expected the like blessing of assist- ance from God. Judges are necessarily tied to give sentence in a cause before them, but lawmakers are not so bound to prescribe sentences.
3. If a judge should sometimes err in his sentence, through misprision or temptation, the error or fault is his own; and the injury or damage extends not far; but an error in the law resteth upon the ordinance itself, and the hurt of it may reach far, even to posterity. There is more righteous- ness and dishonor in one unjust law than in many unjust sentences.
2, ob. God prescribed some certain penalties, and that in cases where offences do usually vary in their degree and merit.
Ans. I. We have showed before, how God might do it, in regard to His absolute sovereignty.
2. It is no injustice to Him, because the least degree of the smallest offence (before His judgment seat) deserves the highest degree of punishment.
3. In some of these (as in theft) He varieth the pun- ishment according to the measure and nature of the offence. In others as death, perpetual solitude, etc., being the just reward of such offences in their simple nature, they have not a fit subject, for an increase of punishment to take place upon. He who is put to death for adultery cannot
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die again for incest concurring therewith, and he who is adjudged to perpetual servitude for stealing a hundred pounds cannot be capable of a further sentence for battery.
4. In all or most of those offences, the penalty was in way of satisfaction to such as were damnified therewith, and in such cases justice will not allow a judge any liberty to alter or remit any thing, nor can any circumstance lead to qualification. A rich man hath the same right of satisfaction for his goods stolen from him as a poor man, and the poorest man's life is the life of man, as well as a prince's.
5. These precedents were given to the judges not with direction to prescribe penalties to other laws that had none, but with commandment to give judgment in all cases, by the equity of these: (there are some forms of prayer and sermons in scripture, but this doth not prove ergo all, etc.)
3, ob. If the determination of the law were left to the judges, that were Arbitrary Government; and is it not in reason the same, if the punishment of the transgression of the law be committed?
Ans. The reason is not alike in both cases.
1. The determination of law belongs properly to God: He is the only lawgiver; but He hath given power and gifts to man to interpret His laws; and this belongs prin- cipally to the highest authority in a commonwealth, and subordinately to other magistrates and judges according to their several places.
2. The law is always the same, and not changeable by any circumstances of aggravation or extenuation, as the penalty is, and therefore draws a certain guilt upon every trans- gressor, whether he sin of ignorance, or against knowledge, or presumptuously; and therefore laws or the interpreta- tions of them, may be prescribed without any danger, because no event can alter the reason, or justice of them, as it may of punishments.
. 3. The law is more general, and lieth as a burden upon all persons and at all times; but the penalty reaches to none but transgressors, and to such, only when they are brought under sentence, and not before.
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4. It is needful that all men should know the laws, and their true meanings, because they are bound to them, and the safety and welfare of the commonwealth consists in the observation of them; therefore it is needful they should be stated and declared as soon as is possible; but there is not the like necessity or use of declaring their penalties beforehand, for they who are godly and virtuous, will observe them, for conscience and virtue's sake; and for such as must be held in by fear of punishment, it is better they should be kept in fear of a greater punishment than to take liberty to transgress through the contempt of a smaller.
4, ob. It is safe for the commonwealth to have penal- ties prescribed, because we know not what magistrates or judges we may have hereafter.
Ans. I. God foresaw that there would be corrupt judges in Israel, yet He left most penalties to their determi- nation.
2. There is no wisdom of any state can so provide but that in many things of greatest concernment they must confide in some men; and so it is in all human affairs; the wisest merchants, and the most wary, are forced to repose great trust in the wisdom and faithfulness of their servants, factors, masters of their ships, etc All states, in their generals of war, admirals, ambassadors, treasurers, etc., and these are causes of more public consequence than the sentence of a judge in matters of misdemeanor, or other smaller offences.
3. When we have provided against all common and prob- able events, we may and ought to trust God for safety from such dangers as are only possible, but not likely, to come upon us ; especially when our striving to prevent such possible dangers may hazard the deprivation or weaken- ing of a present good, or may draw those or other evils nearer upon ns.
This discourse is run out to more length than was in- tended: the conclusion is this: The Government of the Massachusetts consists of Magistrates and Freemen: in the one is placed the authority, in the other, the liberty of the commonwealth. Either hath power to act, both alone.
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and both together, yet by a distinct power, the one of liberty, the other of authority. The Freemen act of them- selves in electing their magistrates and officers; the magis- trates act alone in all occurrences out of court; and both act together in the General Court; yet all limited by cer- tain rules, both in the greater and smaller affairs, so as the Government is regular in a mixed aristocraty, and np ways arbitrary.
The returns of the Committee of the House of Deputies concerning the Book about Arbitrary Government , in the examination thereof; and the votes of the Hon^e passed upon each particular, viz,'.
In the first part thereof:
1. Concerning the definition tlierein made, w© conceive it IS defective.
2. Concerning the distinction therein made of the body politic, and the members thereof, in attributing authority to the one, and only liberty to the other, we find not any such distinction in the Patent.
3. Concerning the clause recited therein (respecting the General Court) which gives only liberty to the freemen to advise and counsel, instead of power and authority (which the Patent allows), we conceive it a taking away of the power and privileges of the freemen.
In the second part of the book, which concerns the rule by which a people should be governed, we find these dan- gerous positions:
1. That general rules are sufficient to clear a state from Arbitrary Government.
2. That judges ought to have liberty to vary from such general rules when they see cause.
In the following of the first of those two positions there are many dangerous passages, and bitter censuring of all penal laws: as: —
1. That they are paper sentences of human authority and invention.
2. That men's prescript sentences do deny and exclude both the wisdom of God, and the authority of the judge.
3. That to prescribe laws with certain penalties is an usurping of God's authority.
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4. That a sentence ought not to be provided before the case fall out, but immediate assistance to be expected.
5. That particular laws including certain penalties are not just, wanting rule.
The introduction of particular instances which are brought to prove this second position, with the reasons and con- sequences, are pernicious and dangerous.
per Robert Bridges,
By order, etc.
Governor Winthrop*s comments on this report, as in- dorsed by him on the same sheet on which he had care- fully copied it, are as follows: —
Answer: the Committee have been mistaken in most of their objections.
1. The Title shows that the author intended not any definition, but a description only, and to make it the more full and clear, he lays it down both affirmatively and nega- tively; yet a logician may frame it into a definition, — thus Arbitrary Government is a Government exercised without a rule, but the description is false by the cause and by the effects.
2. There is no such distinction as is observed between the body politic and the members thereof, for that were to distinguish between the whole and the parts; but the dis- tinction b€tween the members of that body, giving au- thority to the one and power of liberty to the other, is warranted by the Patent (as in other places so) particularly in that clause which sayeth that the Governor, etc., shall call the freemen to consult and advise, etc., which is an act of liberty and not of authority; and for the other part of their power, which is matter of election, the late Body of Liberties sayeth it is their constant liberty, not au- thority.
In the second part:
I. We find not any such position that genera! rules are sufficient to clear a state of arbitrary government, but we find that the word of God and the laws here established being appointed by order of Court as a rule for the pres- ent, are such a rule as may be required by the judges in all their administrations, because a rule may from thence
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be lerived (if God give wisdom to discern it) in any par- ticular case which may fall out; otherwise the Law of God were not perfect, and from what better grounds shall the lawmakers draw all future laws and prescribed penalties.
But if the author had expressed himself in the very words of the position yet it will admit a safe construction, for all laws (not limited to particular parties or occasions) are general rules, and may be so called, though they have a certain penalty annexed.
2. Nor will the book own the second position in the words expressed, but this the judges both from their of- fices (being God's vicegerents) and from diverse examples in Scripture, which seem to hold forth so much, that some liberty ought to be left to judges in some cases, upon special occasions to hold forth the mercy of God, as well as His justice; nor do we consider that either in the Commonwealth of Israel, or in any other, the judges have been wholly restrained of such liberty.
In the following argument: —
If the Committee had found such dangerous passages as they intimate, they should have done well to have imparted their particular observations therein unto us, that we might have considered of them, for want whereof it cannot be expected we should deliver any opinion about them. The like we may say for such bitter censurings as they mention, only it is usual for men to call such things bitter which themselves disrelish, though they may be harmless and wholesome notwithstanding.
For the five particulars mentioned, they are delivered as arguments or the consectaries thereof, so as the arguments must first be avoided before any judgment can be given about them.
The examples which the author allegeth out of Scripture are only to show how God hath sometimes (in His wisdom and mercy) dispensed with the rigor of His own law; and that princes have sometimes done the like upon public or other prevalent considerations, which cannot be denied to be a truth; and for the warrant they had for it, being (at the most) disputable, it was as free for him to de- liver them in his own and some other learned and godly
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men's apprehensions as it is for others who differ therein; and there can be no more danger in this than in other books and sermons, where the same or other passages of Scripture are truly reported, though not applied to the sense of every godly man, as if one should reason thus: David put the Amorites to torture, therefore, in some cases it is lawful so to do. This will not be judged a pernicious doctrine, though some godly men do question the warrantableness of the example. The like may be said of all such examples in Scripture as are controverted among godly and learned men; but it is otherwise in such places as are not ques- tionable, as if a man should reason thus: David sentenced Mephibosheth before he heard him; therefore it is lawful for judge so to do. This might truly be said to be a pernicious doctrine; or if one should argue thus: Saul made a law with a prescript penalty of death to him that should transgress it; therefore it had been just that Jonathan should have been put to death for transgressing that law; or therefore it is lawful for princes, etc., to prescribe penal- ties at their own pleasures; — these might be judged to be pernicious doctrines, because the example is unquestion- able, etc.
THE AUTHOR'S REVIEW OP HIS WRITING
That which gave me occasion first to inquire after a rule for prescript penalties, was the inequality I saw in some prescribed sentences upon the breach of diverse moral laws; and proceeding in this inquiry, I kept my in- tention still upon that subject, without respect to such laws as are merely positive, having their authority only and wholly from human institutions: therefore you shall find that all my instances are of that kind, and all my argu- ments look that way, as in the instances I bring of the laws of England. If I intended the positive and statute laws, it had been a great mistake, for I know well that most of the later Statute Laws have their penalties pre- scribed, and it must needs be so, for such as are merely positive; for a judge can have no rule for his sentence upon the breach of such a law, except he have it from the
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law itself: as, for instance, if the law which forbids any man to kill an hare or partridge with a gun, had not also set down the penalty, the judge could not have found out any, which might have been just, because no law of God or nature makes such an act any offence or transgression. But for the Common Laws of England (which are the ancient laws, and of far more esteem for their wisdom and equity than the Statute Laws,) they had no penalties prescribed; and it may be conceived that for such of them as were grounded upon the Word of God, and the light of nature, there must needs be that in the same Word, and in the same light of nature (especially where the image of God in man is in part renewed by Christ) which may lead us to a just punishment for the transgressor of such a law. Nor do I oppose all prescript penalties in moral cases, but only such as do cross some clear rules in the Word of God, as will appear by all my arguments. And for avoiding all danger to the subject for want of pre- script penalties in some cases, you may see that to require some such law to be made, as may limit judges within such bounds of moderation as may prevent such dangers, and [it] is one of my express conclusions in the first page, that judges ought to be tied to a rule, and such a rule as may be required of them in all their administrations, and therefore upon what ground I should be charged to assert Arbitrary Government, and that judges should have liberty to do what they may, I leave to your judgment.
As for laws, you shall find also that I conclude the neces- sity of declaring and stating them, so as all the people may know them, for I ever held it unjust to require of men the obedience of any law which they may not (by common intendment) take notice of. Answerable thereunto hath been my practice. All the useful laws we have had my con- sent, and such poor help as the Lord enabled me to yield to them; some of which have prescribed penalties, and where I have withheld my consent to any such penalties I have given my reasons for it, which have been such as in some cases have satisfied the Court, and therein I have taken no more liberty than is allowed to every member of the Court. I will not justify every passage in my book:
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there are two or three words that offence hath been taken at, and although I can give a safe account of them, yet I must confess they do not now please me, but when the matter is good, and the intention of the writer honest, the Lord forbids us to make a man an offender in word.
Whatsoever is erroneous (I say as I did from the first) I shall leave it to its due censure; but for all that is of God, and of the Truth, or the sincerity of my intentions herein to the public weal, or the liberty I had by my place to propound such considerations to the Cburt, if these be questioned I must stand and fall with them.
John Winthrop.
THE INSTRUMENT OF
GOVERNMENT
(1653)
[The Instrument of Government is important in the history of written constitutions. It was adopted by Cromwell and his Council of Officers on December 16, 1653, and under it Cromwell assumed the office of Lord Protector. When the Parliament for which it provides met in September, 1654, it passed a constitution of which the Instrument was the basis.]
THE government of the Commonwealth of England, Scotland, and Ireland, and the dominions thereunto belonging.
I. That the supreme legislative authority of the Common- >ealth of England, Scotland, and Ireland, and the dominions thereunto belonging, shall be and reside in one person, and the people assembled in Parliament; the style of which per- son shall be the Lord Protector of the Commonwealth of England, Scotland, and Ireland.
II. That the exercise of the chief magistracy and the administration of the government over the said countries and dominions, and the people thereof, shall be in the Lord Protector, assisted with a council, the number whereof shall not exceed twenty-one, nor be less than thirteen.
III. That all writs, processes, commissions, patents, grants, and other things, which now run in the name and style of the keepers of the liberty of England by authority of Parliament, shall run in the name and style of the Lord Protector, from whom, for the future, shall be derived all magistracy and honours in these three nations; and have the power of pardons (except in case of murders and trea- son) and benefit of all forfeitures for the public use; and shall govern the said countries and dominions in all things
113
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by the advice of the council, and according to these presents and the laws.
IV. That the Lord Protector, the Parliament sitting, shall dispose and order the militia and forces, both by sea and land, for the peace and good of the three nations, by con- sent of Parliament; and that the Lord Protector, with the advice and consent of the major part of the council, shall dispose and order the militia for the ends aforesaid in the intervals of Parliament.
V. That the Lord Protector, by the advice aforesaid, shall direct in all things concerning the keeping and holding of a good correspondency with foreign kings, princes, and states; and also, with the consent of the major part of the council, have the power of war and peace.
VI. That the laws shall not be altered, suspended, abro- gated, or repealed, nor any new law made, nor any tax, charge, or imposition laid upon the people, but by common consent in Parliament, save only as is expressed in the thirtieth article.
VII. That there shall be a Parliament summoned to meet at Westminster upon the third day of September, 1654, and that successively a Parliament shall be summoned once in every third year, to be accounted from the dissolution of the present Parliament.
VIII. That neither the Parliament to be next summoned, nor any successive Parliaments, shall, during the time of five months, to be accounted from the day of their first meeting, be adjourned, prorogued, or dissolved, without their own consent.
IX. That as well the next as all other successive Par- liaments, shall be summoned and elected in manner here- after expressed; that is to say, the persons to be chosen within England, Wales, the Isles of Jersey, Guernsey, and the town of Berwick-upon-Tweed, to sit and serve in Parliament, shall be, and not exceed, the number of four hundred. The persons to be chosen within Scotland, to sit and serve in Parliament, shall be, and not exceed, the number of thirty; and the persons to be chosen to sit in Parliament for Ireland shall be, and not exceed, the number of thirty.
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X. That the persons to be elected to sit in Parliament from time to time, for the several counties of England, Wales, the Isles of Jersey and Guernsey, and the town of Berwick-upon-Tweed, and all places within the same respec- tively, shall be according to the proportions and numbers hereafter expressed: that is to say,
Bedfordshire, 5; Bedford Town, i; Berkshire, 5; Abingdon, i; Reading, i ; Buckinghamshire, 5 ; Buckingham Town, i ; Aylesbury, I ; Wycomb, i ; Cambridgeshire, 4 ; Cambridge Town, i ; Cambridge University, i ; Isle of Ely, 2 ; Cheshire, 4 ; Chester, i ; Cornwall, 8 ; Launceston, i ; Truro, i ; Penryn, i ; East Looe and West Looe, i ; Cumberland, 2 ; Carlisle, i ; Derbyshire, 4 ; Derby Town, i ; Devon- shire, 1 1 ; Exeter, 2 ; Plymouth, 2 ; Clifton, Dartmouth, Hardness, i ; Totnes, \ ; Barnstable, i ; Tiverton, i ; Honiton, i ; Dorsetshire, 6 ; Dorchester, j ; Weymouth and Melcomb-Regis, i ; Lyme-Regis, i ; Poole, i; Durham, 2; City of Durham, i ; Essex, 13; Maiden, i; Colchester, '2 ; Gloucestershire, 5 ; Gloucester, 2 ; Tewkesbury, i ; Cirencester, i ; Herefordshire, 4 ; Hereford, i ; Leominster, i ; Hert- fordshire, s ; St. Alban's, i ; Hertford, 1 ; Huntingdonshire, 3 ; Huntingdon, \ ; Kent, 1 1 ; Canterbury, 2 ; Rochester, i ; Maidstone, J ; Dover, i ; Sandwich, i ; Queenborough, i ; Lancashire, 4 ; Pres- ton, I ; Lancaster, i ; Liverpool, i ; Manchester, i ; Leicestershire, 4 ; Leicester, 2; Lincolnshire, 10; Lincoln, 2\ Boston, i; Grantham, 1; Stamford, i ; Great Grimsby, i ; Middlesex, 4 ; London, 6 ; West- minster, 2\ Monmouthshire, 3; Norfolk, 10; Norwich, 2\ Lynn- Regis, 2; Great Yarmouth, 2; Northamptonshire, 6; Peterborough,
1 ; Northampton, i ; Nottinghamshire, 4 ; Nottingham, 2 ; North- umberland, 3 ; Newcastle-upon-Tyne, i ; Berwick, i ; Oxfordshire, 5 ; Oxford City, i ; Oxford University, i ; Woodstock, i ; Rutlandshire,
2 \ Shropshire, 4 ; Shrewsbury, z ; Bridgnorth, i ; Ludlow, i ; Stafford- shire, 3 ; Lichfield, i ; Stafford, i ; Newcastle-under-Lyne, i ; Som-f ersetshire, 1 1 ; Bristol, 2 ; Taunton, 2 ; Bath, 1 ; Wells, i ; Bridge water, i ; Southamptonshire, 8 ; Winchester, i ; Southampton, i ; Portsmouth, i; Isle of Wight, 2; Andover, i; Suffolk, 10; Ipswich, 2 ; Bury St, Edmunds, ^ ; Dunwicb, i ; Sudbury, i ; Surrey, 6 ; Southwark, 2 ; Guildford, i ; Reigate, i ; Sussex, 9 ; Chichester, i ; Lewes, i ; East Grinstead, 1 ; Arundel, i ; Rye, i ; Westmoreland, 2 ; Warwickshire, 4; Coventry, 2; Warwick, i; Wiltshire, 10; New Sarum, 2 ; Marlborough, i ; Devires, i ; Worcestershire, 5 ; Worces- ter, 2.
Yorkshire.— West Riding, 6; East Riding, 4; North Riding, 4; City of York, 2 ; Kingston-upon-Hull, i ; Beverley, i ; Scarborough, I ; Richmond, i ; Leeds, i ; Halifax, i.
Wales.— Anglesey, 2 ; Brecknockshire, 2 ; Cardiganshire, 2 ; Car- marthenshire, 2 ; Carnarvonshire, 2 ; Denbighshire, 2 ; Flintshire, 2 ; Glamorganshire, 2 ; Cardiff, i ; Merionethshire, i ; Montgomeryshire, 2 ; Pembrokeshire, 2 ; Haverfordwest, i ; Radnorshire, 2.
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The distribution of the persons to be chosen for Scot- land and Ireland, and the several counties, cities, and places therein, shall be according to such proportions and num- ber as shall be agreed upon and declared by the Lord Pro- tector and the major part of the council, before the send- ing forth writs of summons for the next Parliament.
XI. That the summons to Parliament shall be by writ under the Great Seal of England, directed to the sheriffs of the several and respective counties, with such altera- tion as may suit with the present government, to be made by the Lord Protector and his council, which the Chancellor, Keeper, or Commissioners of the Great Seal shall seal, issue, and send abroad by warrant from the Lord Protector. If the Lord Protector shall not give warrant for issuing of writs of summons for the next Parliament, before'the first of June, 1654, or for the Triennial Parliaments, before the first day of August in every third year, to be accounted as afore- said; that then the Chancellor, Keeper, or Commissioners of the Great Seal for the time being, shall, without any warrant or direction, within seven days after the said first day of June, 1654, seal, issue, and send abroad writs of summons (changing therein what is to be changed as aforesaid) to the several and respective sheriffs of England, Scotland, and Ireland, for summoning the Parliament to meet at Westminster, the third day of September next; and shall likewise, within seven days after the said first day of August, in every third year, to be accounted from the dissolution of the precedent Parliament, seal, issue, and send forth abroad several writs of summons (changing therein what is to be changed) as aforesaid, for summoning the Parliament to meet at Westminster the sixth of November in that third year. That the said several and respective sheriffs, shall, within ten days after the receipt of such writ as aforesaid, cause the same to be proclaimed and published in every mar- ket-town within his county upon the market-days thereof, between twelve and three of the clock; and shall then also publish and declare the certain day of the week and month, for choosing members to serve in Parliament for the body of the said county, according to the tenor of the said writ, which shall be upon Wednesday five weeks after the date of
AMERICAN HISTORICAL DOCUMENTS 11^
the writ; and shall likewise declare the place where the election shall be made: for which purpose he shall appoint the most convenient place for the whole county to meet in; and shall send precepts for elections to be made in all and every city, town, borough, or place within his county, where elections are to be made by virtue of these presents, to the Mayor, Sheriff, or other head officer of such city, town, borough, or place, within three days after the receipt of such writ and writs; which the said Mayors, Sheriffs, and officers respectively are to make publication of, and of the certain day for such elections to be made in the said city, town, or place aforesaid, and to cause elections to be made accordingly.
XII. That at the day and place of elections, the Sheriff of each county, and the said Mayors, Sheriffs, Bailiffs, and other head officers within their cities, towns boroughs, and places respectively, shall take view of the said elections, and shall make return into the chancery within twenty days after the said elections, of the persons elected by the greater number of electors, under their hands and seals, between him on the one part, and the electors on the other part; wherein shall be contained, that the persons elected shall not have power to alter the government as it is hereby settled in one single person and a Parliament.
XIII. That the Sheriff, who shall wittingly and willingly make any false return, or neglect his duty, shall incur the penalty of 2000 marks of lawful English money; the one moiety to the Lord Protector, and the other moiety to such person as will sue for the same.
XIV. That all and every person and persons, who have aided, advised, assisted, or abetted in any war against the Parliament, since the first day of January 1641 (unless they have been since in the service of the Parliament, and given signal testimony of their good affection thereunto) shall be disabled and incapable to be elected, or to give any vote in the election of any members to serve in the next Parliament, or in the three succeeding Triennial Parliaments.
XV. That all such, who have advised, assisted, or abetted the rebellion of Ireland, shall be disabled and incapable for ever to be elected, or give any vote in the election of any
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member to serve in Parliament; as also all such who do or shall profess the Roman Catholic religion.
XVI. That all votes and elections given or made con- trary, or not according to these qualifications, shall be null and void; and if any person, who is hereby made incapable, shall give his vote for election of members to serve in Par- liament, such person shall lose and forfeit one full year's value of his real estate, and one full third part of his per- sonal estate; one moiety thereof to the Lord Protector, and the other moiety to him or them who shall sue for the same.
XVII. That the persons who shall be elected to serve in Parliament, shall be such (and no other than such) as are persons of known integrity, fearing God, and of good con* versation, and being of the age of twenty-one years.
XVIII. That all and every person and persons seised or possessed to his own use, of any estate, real or personal, to the value of £200, and not within the aforesaid exceptions, shall be capable to elect members to serve in Parliament for counties.
XIX. That the Chancellor, Keeper, or Commissioners of the Great Seal, shall be sworn before they enter into their offices, truly and faithfully to issue forth, and send abroad, writs of summons to Parliament, at the times and in the manner before expressed: and in case of neglect or failure to issue and send abroad writs accordingly, he or they shall for every such offence be guilty of high treason, and suffer the pains and penalties thereof.
XX. That in case writs be not issued out, as is before expressed, but that there be a neglect therein, fifteen days after the tiAie wherein the same ought to be issued out by the Chancellor, Keeper, or Commissioners of the Great Seal ; that then the Parliament shall, as often as such failure shall happen, assemble and be held at Westminster, in the usual place, at the times prefixed, in manner and by the means hereafter expressed; that is to say, that the sheriffs of the several and respective counties, sheriffdoms, cities, boroughs, and places aforesaid, within England, Wales, Scotland, and Ireland, the Chancellor, Masters, and Scholars of the Universities of Oxford and Cambridge, and the Mayor and Bailiffs of the borough of Berwick-upon-Tweed,
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and other places aforesaid respectively, shall at the several courts and places to be appointed as aforesaid, within thirty days after the said fifteen days, cause such members to be chosen for their said several and respective counties, sheriffdoms, universities, cities, boroughs, and places afore- said, by such persons, and in such manner as if several and respective writs of summons to Parliament under the Great Seal had issued and been awarded according to the tenor aforesaid: that if the sheriff, or other persons authorized, shall neglect his or their duty herein, that all and every such sheriff and person authorized as aforesaid, so neglect- ing his or their duty, shall, for every such offence, be guilty of high treason, and shall suffer the pains and pen- alties thereof.
XXI. That the clerk, called the clerk of the Common- wealth in Chancery for the time being, and all others, who shall afterwards execute that office, to whom the returns shall be made, shall for the next Parliament, and the two succeeding Triennial Parliaments, the next day after such return, certify the names of the several persons so returned, and of the places for which he and they were chosen respec- tively, unto the Council; who shall peruse the said returns, and examine whether the persons so elected and returned be such as is agreeable to the qualifications, and not disabled to be elected: and that every person and persons being so duly elected, and being approved of by the major part of the Council to be persons not disabled, but qualified as aforesaid, shall be esteemed a member of Parliament, and be admitted to sit in Parliament, and not otherwise.
XXII. That the persons so chosen and assembled in manner aforesaid, or any sixty of them, shall be, and be deemed the Parliament of England, Scotland, and Ireland; and the supreme legislative power to be and reside in the Lord Protector and such Parliament, in manner herein expressed.
XXIII. That the Lord Protector, with the advice of the major part of the Council, shall at any other time than is before expressed, when the necessities of the State shall require it, summon Parliaments in manner before expressed, which shall not be adjourned, prorogued, or dissolved with-
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out their own consent, during the first three months of their sitting. And in case of future war with any foreign State, a Parliament shall be forthwith summoned for their advice concerning the same.
XXIV. That all Bills agreed unto by the Parliament, shall be presented to the Lord Protector for his consent; and in case he shall not give his consent thereto within twenty days after they shall be presented to him, or give sat- isfaction to the Parliament within the time limited, that then, upon declaration of the Parliament that the Lord Protector hath not consented nor given satisfaction, such Bills shall pass into and become laws, although he shall not give his consent thereunto; provided such Bills contain nothing in them contrary to the matters contained in these presents.
XXV. That Henry Lawrence, Esq., &c.,* or any seven of them, shall be a Council for the purposes expressed in this writing; and upon the death or other removal of any of them, the Parliament shall nominate six persons of ability, integrity, and fearing God, for every one that is dead or removed; out of which the major part of the Council shall elect two, and present them to the Lord Pro- tector, of which he shall elect one; and in case the Parlia- ment shall not nominate within twenty days after notice given unto them thereof, the major part of the Council shall nominate three as aforesaid to the Lord Protector, who out of them shall supply the vacancy; and until this choice be made, the remaining part of the Council shall execute as fully in all things, as if their number were full. And in case of corruption, or other miscarriage in any of the Council in their trust, the Parliament shall appoint seven of their number, and the Council six, who, together with the Lord Chancellor, Lord Keeper, or Commissioners of the Great Seal for the time being, shall have power to hear and determine such corruption and miscarriage, and to award and inflict punishment, as the nature of the offence shall deserve, which punishment shall not be pardoned or re- mitted by the Lord Protector; and, in the interval of Par- liaments, the major part of the Council, with the consent of the Lord Protector, may, for corruption or other miscar-
* The names of fifteen members are given here.
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riage as aforesaid, suspend any of their number from the exercise of their trust, if they shall find it just, until the matter shall be heard and examined as aforesaid.
XXVI. That the Lord Protector and the major part of the Council aforesaid may, at any time before the meeting of the next Parliament, add to the Council such persons as they shall think fit, provided the number of the Council be not made thereby to exceed twenty-one, and the quorum to be proportioned accordingly by the Lord Protector and the major part of the Council.
XXVII. That a constant yearly revenue shall be raised, settled, and established for maintaining of 10,000 horse and dragoons, arxi 20,000 foot, in England, Scotland and Ire- land, for the defence and security thereof, and also for a con- venient number of ships for guarding of the seas; besides £200,000 per annum for defraying the other necessary charges of administration of justice, and other expenses of the Government, which revenue shall be raised by the customs, and such other ways and means as shall be agreed upon by the Lord Protector and the Council, and shall not be taken away or diminished, nor the way agreed upon for raising the same altered, but by the consent of the Lord Protector and the Parliament.
XXVIII. That the said yearly revenue shall be paid into the public treasury, and shall be issued out for the uses aforesaid.
XXIX. That in case there shall not be cause hereafter to keep up so great a defence both at land or sea, but that there be an abatement made thereof, the money which will be saved thereby shall remain in bank for the public service, and not be employed to any other use but by con- sent of Parliament, or, in the intervals of Parliament, by the Lord Protector and major part of the Council.
XXX. That the raising of money for defraying the charge of the present extraordinary forces, both at sea and land, in respect of the present wars, shall be by con- sent of Parliament, and not otherwise: save only that the Lord Protector, with the consent of the major part of the Council, for preventing the disorders and dangers which might otherwise fall out both by sea and land, shall have
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power, until the meeting of the first Parliament, to raise money for the purposes aforesaid; and also to make laws and ordinances for the peace and welfare of these nations where it shall be necessary, which shall be binding and in force, until order shall be taken in Parliament concerning the same.
XXXI. That the lands, tenements, rents, royalties, juris- dictions and hereditaments which remain yet unsold or un- disposed of, by Act or Ordinance of Parliament, belonging to the Commonwealth (except the forests and chases, and the honours and manors belonging to the same ; the lands of the rebels in Ireland, lying in the four counties of Dublin, Cork, Kildare, and Carlow; the lands forfeited by the people of Scotland in the late wars, and also the lands of Papists and delinquents in England who have not yet com- pounded), shall be vested in the Lord Protector, to hold, to him and his successors. Lords Protectors of these nations, and shall not be alienated but by consent in Par- liament. And all debts, fines, issues, amercements, penalties and profits, certain and casual, due to the Keepers of the liberties of England by authority of Parliament, shall be due to the Lord Protector, and be payable into his public receipt, and shall be recovered and prosecuted in his name.
XXXII. That the office of Lord Protector over these nations shall be elective and not hereditary; and upon the death of the Lord Protector, another fit person shall be forthwith elected to succeed him in the Government; which election shall be by the Council, who, immediately upon the death of the Lord Protector, shall assemble in the Chamber where they usually sit in Council; and, having given notice to all their members of the cause of their assembling, shall, being thirteen at least present, proceed to the election; and, before they depart the said Chamber, shall elect a fit person to succeed in the Government, and forthwith cause procla- mation thereof to be made in all the three nations as shall be requisite; and the person that they, or the major part of them, shall elect as aforesaid, shall be, and shall be taken to be. Lord Protector over these nations of England, Scot- land and Ireland, and the dominions thereto belonging. Provided that none of the children of the late King, nor any
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of his line or family, be elected to be Lord Protector or other Chief Magistrate over these nations, or any of the dominions thereto belonging. And until the aforesaid elec- tion be past, the Council shall take care of the Government, and administer in all things as fully as the Lord Protector, or the Lord Protector and Council are enabled to do.
XXXIII. That Oliver Cromwell, Captain-General of the forces of England, Scotland and Ireland, shall be, and is hereby declared to be. Lord Protector of the Commonwealth of England, Scotland and Ireland, and the dominions there- to belonging, for his life.
XXXIV. That the Chancellor, Keeper or Commissioners of the Great Seal, the Treasurer, Admiral, Chief Governors of Ireland and Scotland, and the Chief Justices of both the Benches, shall be chosen by the approbation of Parliament; and, in the intervals of Parliament, by the approbation of the major part of the Council, to be afterwards ''approved by the Parliament,
XXXV. That the Christian religion, as contained in the Scriptures, be held forth and recommended as the public profession of these nations; and that, as soon as may be, a provision, less subject to scruple and contention, and more certain than the present, be made for the encouragement and maintenance of able and painful teachers, for the instructing the people, and for discovery and confutation of error, hereby, and whatever is contrary to sound doctrine; and until such provision be made, the present maintenance shall not be taken away or impeached.
XXXVI. That to the public profession held forth none shall be compelled by penalties or otherwise; but that endeavours be used to win them by sound doctrine and the example of a good conversation.
XXXVII. That such as profess faith in God by Jesus Christ (though differing in judgment from the doctrine, worship or discipline publicly held forth) shall not be re- strained from, but shall be protected in, the profession of the faith and exercise of their religion ; so as they abuse not this liberty to the civil injury of others and to the actual dis- turbance of the public peace on their parts: provided this liberty be not extended to Popery or Prelacy, nor to such
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as, under the profession of Christ, hold forth and practice licentiousness.
XXXVIII. That all laws, statutes and ordinances, and clauses in any law, statute or ordinance to the contrary of the aforesaid liberty, shall be esteemed as null and void.
XXXIX. That the Acts and Ordinances of Parliament made for the sale or other disposition of the lands, rents and hereditaments of the late King, Queen, and Prince, of Archbishops and Bishops, &c.. Deans and Chapters, the lands of delinquents and forest-lands, or any of them, or of any other lands, tenements, rents and hereditaments belonging to the Commonwealth, shall nowise be impeached or made invalid, but shall remain good and firm ; and that the securi- ties given by Act and Ordinance of Parliament for any sum or sums of money, by any of the said lands, the excise, or any other public revenue ; and also the securities given by the public faith of the nation, and the engagement of the public faith for satisfaction of debts and damages, shall re- main firm and good, and not be made void and invalid upon any pretence whatsoever.
XL. That the Articles given to or made with the enemy, and afterwards confirmed by parliament, shall be performed and made good to the persons concerned therein; and that such appeals as were depending in the last Parliament for relief concerning bills of sale of delinquent's estates, may be heard and determined the next Parliament, any thing in this writing or otherwise to the contrary notwith- standing.
XLI. That every successive Lord Protector over these nations shall take and subscribe a solemn oath, in the pres- ence of the Council, and such others as they shall call to them, that he will seek the peace, quiet and welfare of these nations, cause law and justice to be equally administered; and that he will not violate or infringe the matters and things contained in this writing, and in all other things will, to his power and to the best of his understanding, govern these nations according to the laws, statutes and customs thereof.
XLII. That each person of the Council shall, before they enter upon their trust, take and subrcribe an oath, that
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they will be true and faithful in their trust, according to the best of their knowledge; and that in the election of every successive Lord Protector they shall proceed therein im- partially, and do nothing therein for any promise, fear, favour or reward.
I
A HEALING QUESTION
BY SIR HENRY VANE. (1656)
[In 1656, Cromwell issued a proclamatioa for a general fast to consider the cause of the continued distracted condition of Britain. In response, Sir Henry Vane, previously Governor of Massachusetts, and one of the most high-minded statesmen of the period of the Commonwealth in England, published the following tract, expounding the principles of civil and religious liberty, and proposing that method of forming a constitution, through a convention called for the purpose, which was actually followed in America after the Revolution.]
A Healing Question propounded and resolved, upon Oc- casion OF the late public and seasonable Call to Humiliation, in order to Love and Union among the honest Party, and with a Desire to ap- ply Balm to the Wound before it become in- curable.
THE question propounded is. What possibility doth yet remain (all things considered) of reconciling and uniting the dissenting judgments of honest men within the three nations, who still pretend to agree in the spirit, justice, and reason of the same good cause, and what is the means to effect this?
Answ. If it be taken for granted (as, on the magis- trate's part, from the ground inviting the people of England and Wales to a solemn day of fasting and humiliation, may not be despaired of) that all the dissenting parties agree still in the spirit and reason of the same righteous cause, the resolution seems very clear in the affirmative; arguing not only for a possibility, but a great probability hereof; nay, a necessity daily approaching nearer and nearer to compel it, if any or all of the dissenting parties intend or desire to be safe from the danger of the common enemy, who is not out of work, though at present much out of sight and observation.
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The grounds of this are briefly these: First, the cause hath still the same goodness in it as ever, and is, or ought to be, as much in the hearts of all good people that have adhered to it: it is not less to be valued now, than when neither blood nor treasure were thought too dear to carry it on, and hold it up from sinking; and hath the same omnipotent God, whose great name is concerned in it, as well as his people's outward safety and welfare; who knows, also, how to give a revival to it when secondary instruments and visible means fail or prove deceitful.
Secondly, The persons concerned and engaged in this cause are still the same as before, with the advantage of being more tried, more inured to danger and hardship, and more endeared to one another, by their various and great experiences, as well of their own hearts as their fellow- brethren. These are the same still in heart and desire after the same thing, which is, that, being freed out of the hands of their enemies, they may serve the Lord without fear, in holiness and righteousness all the days of their life.
As they have had this great good finally in their aims (if declarations to men and appeals to God signify any- thing), so, as a requisite to attain this, they did with great cheerfulness and unanimity draw out themselves to the utmost in the maintenance of a war, when all other means, first essayed, proved ineffectual. In the management of this war, it pleased God, the righteous Judge (who was appealed to in the controversy), so to bless the counsel and forces of the persons concerned and engaged in this cause, as in the end to make them absolute and complete conquerors over their common enemy; and by this means they had added unto the natural right which was in them before (and so declared by their representatives in Parliament assem- bled), the right of conquest, for the strengthening of their just claim to be governed by national councils, and succes- sive representatives of their own election and setting up. This they once thought they had been in possession of, when it was ratified, as it were, in the blood of the last king. But of late a great interruption having happened unto them in their former expectations, and, instead thereof, some- thing rising up that seems rather accommodated to the
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private and selfish interest of a particular part (in com- parison) than truly adequate to the common good and con- cern of the whole body engaged in this cause: hence it is that this compacted body is now falling asunder into many dissenting parts (a thing not unforeseen nor unhoped for by the common enemy all along as their last relief) ; and if these breaches be not timely healed, and the offences (before they take too deep root) removed, they will certainly work more to the advantage of the common enemy than any of their own unwearied endeavours and dangerous contriv- ances in foreign parts put all together.
A serious discussion and sober enlarging upon these grounds will quickly give an insight into the state of the question, and naturally tend to a plain and familiar resolu- tion thereof.
That which is first to be opened is the nature and good- ness of the cause; which, had it not carried in it its own evidence, would scarce have found so many of the people of God adherers to it within the three nations, con- tributing either their counsels, their purses, their bodily pains, or their affections and prayers, as a combined strength ; without which, the military force alone would have been little available to subdue the common enemy, and restore to this whole body their just natural rights in civil things, and true freedom in matters of conscience.
The two last-mentioned particulars, rightly stated, will evidence sufficiently the nature and goodness of this cause.
For the first of these, that is to say, the natural right, which the whole party of honest men adhering to this cause are by success of their arms restored unto, fortified in, and may claim as their undeniable privilege, that righteously cannot be taken from them, nor they debarred from bringing into exercise, it lies in this:
They are to have and enjoy the freedom (by way of dutiful compliance and condescension from all the parts and members of this society) to set up meet persons in the place of supreme judicature and authority among them, whereby they may have the use and benefit of the choicest light and wisdom of the nation that they are capable to call forth, for the rule and government under which they
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will live; and through the orderly exercise of such measure of wisdom and counsel as the Lord in this way shall please to give unto them, to shape and form all subordinate actings and administrations of rule and government so as shall best answer the public welfare and safety of the whole.
This, in substance, is the right and freedom contained ip the nature and goodness of the cause wherein the honest party have been engaged; for in this all the particulars of our civil right and freedom are comprehended, conserved in, and derived from their proper root; in which, while they grow, they will ever thrive, flourish, and increase; whereas, on the contrary, if there be never so many fair branches of liberty planted on the root of a private and selfish interest, they will not long prosper, but must, within a little time, wither and degenerate into the nature of that whereinto they are planted; and hence, indeed, sprung the evil of that government which rose in and with the Norman Conquest.
The root and bottom upon which it stood was not public interest, but the private lust and will of the conqueror, who by force of arms did at first detain ^e right and freedom which was and is due to the whole body of the people; for whose safety and good, government itself is ordained by God, not for the particular benefit of the rulers, as a distinct and private interest of their own; which yet, for the most part, is not only preferred before the common good, but upheld in opposition thereuntOc And as at first the con- queror did, by violence and force, deny this freedom to the people, which was. their natural right and privilege, so he and his successors all along lay as bars and impediments to the true national interest and public good, in the very national councils and assemblies themselves, which were constituted in such a manner as most served for the up- holding of the private interest of their families; and this being challenged by them as their prerogative, was found by the people assembled in Parliament most unrighteous, bur- densome, and destructive to their liberty. And when they once perceived that by this engine all their just rights were like to be destroyed especially (being backed, as it was, with the power of the militia, which the late king, for that
HC XLin (5)
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purpose, had assumed into tiis hands, and would not, upon the people's application to him in Parliament, part with into the hands of that great council, who were best to be intrusted with the nation's safety), this was the ground of the quarrel, upon a civil account between the king and his party, and the whole body of adherents to the cause of the people's true liberty; whereof this short touch hath been given, and shall suffice for the opening of the first branch of this clause.
The second branch which remains briefly to be handled is that which also upon the grounds of natural right is to be laid claim unto, but distinguishes itself from the former as it respects a more heavenly and excellent object wherein the freedom is to be exercised and enjoyed, that is to say, matters of religion, or that concern the service and worship of God.
Unto this freedom the nations of the world have right and title by the purchase of Christ's blood, who, by virtue of his death and resurrection. Is become the sole Lord and Ruler in and over the conscience; for to this end Christ died, rose, and revived, that he might be Lord both of the dead and of the living, and that every one might give an account of himself, in all matters of God's worship mito God and Christ alone, as their own Master, unto whom they stand or fall in judgment, and are not in tiiese things to be oppressed, or brought before the judgment-seats of men. For why shouldst thou set at naught thy brother in matters of his faith and conscience, and herein intrude into the proper office of Christ, since we are all to stand at the judgment-seat of Christ, whether governors or governed, and by his decision only are capable of being declared with certainty to be in the right or In the wrong?
By virtue, then, of this supreme law, sealed and con- firmed in the blood of Christ tmto all men (whose souls he challenges a propriety in, to bring under his inward rule in the service and worship of God), it is that all magistrates are to fear and forbear Intermeddling with giving rule or imposing in those matters. They are to content themselves with what is plain in their commission, as ordained of God to be his minister unto men for good, while they approve
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themselves the doers of that which is good In the sight of
men, and whereof earthly and worldly judicatures are cap- able to make a clear and perfect judgment: in which case the magistrate is to be for praise and protection to them. In like manner, he is to be a minister of terror and revenge to those that do evil in matters of outward practice, con- verse, and dealings in the things of this life between man and man, for the cause whereof the judicatures of men are appointed and set up. But to exceed these limits, as it is not safe or warrantable for the magistrate (in that he who is higher than the highest, regards, and will show himself dis- pleased at it), so neither is it good for the people, who here- by are nourished up in a biting, devouring, wrathful spirit one against another, and arc found transgressors of that royal law which forbids us to do that unto another which we would not have them do unto us, were we in their condition.
This freedom, then, is of high concern to be had and enjoyed, as well for the magistrate's sake as for the people's common good; and it consists, as hath been said, in the magistrate forbearing to put forth the power of rule and coercion in things that God hath exempted out of his com- mission: so that all care requisite for the people's obtaining this may be exercised with great ease, if it be taken In its proper season, and that this restraint be laid upon the su- preme power before it be erected, as a fundamental con- stitution, among others, upon which the free consent of the people is given, to have the persons brought into the exercise of supreme authority over them and on their behalf; and if, besides, as a further confirmation hereunto, it be acknowl- edged the voluntary act of the ruling power, when once brought into a capacity of acting legislatively, that herein they are bound up, and judge it their duty so to be (both in reference to God, the institutor of magistracy, and in reference to the whole body by whom they are Intrusted), this great blessing will hereby be so well provided for that ve shall have no cause to fear, as it may be ordered.
By this means a great part of the outward exercise of anti-Christian tyranny and bondage will be plucked up by the veiy roots, which, till some such course be held in it.
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will be alwajrs apt to renew and sprout out afresh, tin'def some new form or refined appearances, as by late years' experience we have been taught: for, since the fall of the bishops and persecuting presbyteries, the same spirit is apt to arise in the next sort of clergy that can get the ear of the magistrate, and pretend to the keepmg and ruling the con- science of the governors, although this spirit and practice hath been all along decried by the faithful adherents to this cause as a most sore oppression and insufferable yoke ' of bondage, most unrighteously kept up over the consciences of the people, and therefore judged by them most needful to be taken out of the way; and in this matter the present governors have been willing very eminently to give their testimony in their public declarations, however in practice there is much of grievance yet found among us, though more, in probability, from the officiousness of subordinate ministers than any clear purpose or design of the chief in power.
Having thus showed what the true freedora is, in both the branches of it, that shines forth in the righteous cause, wherein the good people of these nations have so deeply engaged, it will not be improper, in the next place, to con- sider two particulars more that give still farther light into the matter in question, as, first, the qualifications of the persons that have adhered to this cause ; secondly, the capac- ity wherein they have been found from time to time carry- ing it on.
As to their qualification, they have, in the general, dis- tinguished themselves and been made known by a forward- ness to assist and own the public welfare and good of the nation, for the attaining and preserving the just rights and liberties thereof, asserted and witnessed unto in the true [ stating of this cause, according to the two branches thereof already spoken tc. They have showed themselves, upon all occasions, desirers and lovers of true freedom, either in civils or in spirituals, or in both. To express their value thereof, and faithfulness to the same, they have largely con- tributed, in one kind or other, what was proper to each in his place to do; which actions of theirs proceeding from hearts sincerely affected to the cause, created in them a
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right to be of an incorporation and society by themselves, under the name of the good party, having been from the beginning unto this day publicly and commonly so acknowl- edged, by way of distinction from all neuters, close and open enemies, and deceitful friends or apostates. These, in order to the maintaining of this cause, have stood by the army, in defence and support thereof, against all opposition what- ever, as those that, by the growing light of these times, have been taught and led forth in their experiences to look above and beyond the letter, form, and outward circumstances of government, into the inward reason and spirit thereof, here- in only to fix and terminate, to the leaving behind all empty shadows that would obtrude themselves in the place of true freedom.
Secondly, as to the capacity wherein these persons, thus qualified, have acted, it hath been very variable, and subject to great changes: sometimes in one from, and sometimes in another, and very seldom, if ever at all, so exactly and in all points consonant to the rule of former laws and con- stitutions of government as to be clearly and fully justified by them any longer than the law of success and conquest did uphold them who had the inward warrant of justice and righteousness to encourage them in such their actings.
The utmost and last reserve, therefore, which they have had, in case all other failed, hath been their military capac- ity, not only strictly taken for the standing army, but in the largest sense, wherein the whole party may (with the army, and under that military constitution and conduct which, by the providence of God, they shall then be found in) associate themselves in the best order they can for the common defence and safety of the whole; as not ignorant that when once embodied in this their military posture, in such manner as by common consent shall be found requisite for the safety of the body, they are most irresistible, abso- lute, and comprehensive in their power, having that wherein the substance of all government is contained, and under the protection whereof, and safety that may be maintained thereby, they can contrive and determine in what manner this irresistible, absolute, and boundless power, unto which they are now arrived in this their military capacity, shall
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have just and due limits set unto it, and be drawn out in a meet and orderly way of exercise for the commonweal and safety of the whole body, under the rule and oversight of a supreme judicature, unto the wisdom of whose laws and orders the sword is to become most entirely subject and subservient; and this without the least cause of jealousy or unsafety, either to the standing army, or any member thereof, or unto the good people adhering to this cause, or any of them, since the interest of both, by this mutual action of either, will be so combined together in one (even in that wherein before they were distinct), that all just cause of dif- ference, fear, animosity, emulation, jealousy, or the like, will be wholly abolished and removed.
For when once the whole body of the good people find that the military interest and capacity is their own, and that into which necessity at the last may bring the whole party (whereof, of right, a place is to be reserved for them), and that herein they are so far from being in subjection or sla- very, that in this posture they are most properly sovereign, and possess their right of natural sovereignty, they will presently see a necessity of continuing ever one with their army, raised and maintained by them for the promoting this cause against the common enemy, who in his next attempt will put for all with greater desperateness and rage than ever.
Again, when once the standing army and their governors shall also find that, by setting and keeping up themselves in a divided interest from the rest of the body of honest men, they withhold from themselves those contributions in all voluntary and cheerful assistances, by the affections and prayers, by the persons and purses of the good party, to the weakening themselves thereby, as to any vigorous support from them, in the times of most imminent danger (whereof the late king had an experience, that will not suddenly be out of memory, when he undertook the war, in the beginning of these troubles, against the Scots, and was, in a manner, therein deserted by all the good party in England), they will then find (if they stay not till it be too late) that, by espous- ing the interest of the people, in submitting themselves with their fellow-adherents to the cause, under the rule and
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authority of their own supreme judicature, they lose not their power or sovereignty, but, becoming one civil or politic incorporation with the whole party of honest men, they do therein keep the sovereignty, as originally seated in them- selves, and part with it only but as by deputation and repre- sentation of themselves, when it is brought into an orderly way of exercise, by being put into the hands of persons chosen and intrusted by themselves to that purpose.
By this mutual and happy transition, which may be made between the party of honest men in the three nations vir- tually in arms, and those actually so now in power at the head of the army; how suddenly would the union of the whole body be consolidated, and made so firm as it will not need to fear all the designs and attempts of the common enemy, especially if herein they unite themselves in the first place to the Lord, as willing to follow his providence, and observe his will in the way and manner of bringing this to pass! in which case we shall not need to fear what all the gates of hell are able to do in opposition thereunto.
It is not, then, the standing and being of the present army and military forces in the three nations that is liable to exception of offence from any dissenting judgments at this time among the honest, well-affected party. In and with them, under God, stand the welfare and outward safety of the whole body; and to be enemies to them, or wish them hurt, were to do it to themselves; and, by trying such con- clusions, to play the game of the common enemy, to the utter ruin and destruction, not only of the true freedom aimed at and contended for in the late wars, but of the very persons themselves that have been in any sort active or eminent promoters thereof.
The army, considered as it is in the hands of an honest and wise general, and sober, faithful officers, embodied with the rest of the party of honest men, and espousing still the same cause, and acting in their primitive simplicity, humility, and trust, in reference to the welfare and safety of the whole body, is the only justifiable and most advantageous posture and capacity that the good party at present can find them- selves in, in order to the obtaining tJiat true freedom they have fought for, and possessing of it in the establishment
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tbitreof upon the true basis and foundation, as hath been showed, of right government.
That wherein the offence lies, and which causes such great thoughts of heart among the honest party (if it may be freely expressed, as sure it may, when the magistrate him- self professes he doth but desire and wait for conviction therein), is, in short, this:
That when the right and privilege is returned, nay, is re- stored by conquest unto the whole body (that forfeited not their interest therein), of freely disposing themselves in such a constitution of righteous government as may best answer the ends held forth in this cause; that, nevertheless, either through delay they should be withheld as they are, or through design they should come at last to be utterly denied the exercise of this their right, upon pretence that they are not in capacity as yet to use it, which, indeed, hath some truth in it, if those that are now in power, and have the command of the arms, do not prepare all things requisite thereunto, as they may, and, like faithful guardians to the Commonwealth, admitted to be in its nonage, they ought.
But if the bringing of true freedom into exercise among men, yea, so refined a party of men, be impossible, why hath this been concealed all this while? and why was it not thought on before so much blood was spilt, and treasure spent? Surely such a thing as this was judged real and practicable, not imaginary and notional.
Besides, why may it not suffice to have been thus long de- layed and withheld from the whole body, at least as to its being brought by them into exercise now at last? Surely the longer it is withheld, the stronger jealousies do increase, that it is intended to be assumed and engrossed by a part only, to the leaving the rest of the body (who, in all reason and justice, ought to be equally participants with the other in the right and benefit of the conquest, for as much as the war was managed at the expense and for the safety of the whole) in a condition almost as much exposed, and subject to be imposed upon, as if they had been enemies and con- quered, not in any sense conquerors.
If ever such an unrighteous, unkind, and deceitful dealing with brethren should happen, although it might continue
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above the reach of question from human judicature, yet can we think it possible it should escape and go unpunished by the immediate hand of the righteous Judge of the whole world, when he ariseth out of his place to do right to the oppressed.
Nay, if, instead of favouring and promoting the people's common good and welfare, self-interest and private gain should evidently appear to be the things we have aimed at all along; if those very tyrannical principles and anti-Chris- tian relics, which God by us hath punished in our predeces- sors, should again revive, spring up afresh, and show them- selves lodged also and retained in our bosoms, rendering us of the number of those that have forgot they were purged from their old sins, and declaring us to be such as, to please a covetous mind, do withhold from destruction that which God hath designed to the curse of his vengeance: if all those great advantages of serving the Lord's will and design in procuring and advancing his people's true welfare and outward safety, which (as the fruit of his blessing upon our armies) have so miraculously fallen into our hands, shall at last be wrested and misimproved to the enriching and greatening of ourselves — if these things should ever be found among us (which the Lord in mercy forbid!), shall we need to look any farther for the accursed thing? will not our consciences show us, from the light of the Word and Spirit of God, how near a conformity these actions would hold therewith? which sin (Josh., vii.) became a curse to the camp, and withheld the Lord from being any more among them, or going out with their forces. And did the action of Achan import any more than these two things: First, he saved and kept from destruction the goodly Baby- lonish garment, which was devoted by God thereunto; sec- ondly, he brought not in the fruit and gain of the conquest into the Lord's treasury, but covetously went about to con- vert it to his own proper use? To do this is to take of the accursed thing, which (Josh., vii.) all Israel was said to do in the sin of Achan, and to have stolen and dissembled likewise, and put it among their own stuff. This caused the anger of the Lord to kindle against Israel, and made them unable to stand before their enemies, but their hearts melted
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as water. And thus far the Lord is concerned, if such an evil as this shall lie hid in the midst of us. But to return to what we were upon before.
The matter which is in question among the dissenting parts of the whole body of honest men is not so trival and of such small consequence as some would make it. 'Tis, in effect, the main and whole of the cause; without which all the freedom which the people have or can have is in com- parison but shadow and in name only, and therefore can never give that peace and satisfaction to the body which is requisite unto a durable and solid settlement. This is that which makes all soimd and safe at the root, and gives the right balance necessary to be held up between sovereignty and subjection in the exercise of all righteous government; applying the use of the sword to the promoting and uphold- ing the public safety and welfare of the whole body, in preference, and, if need be, in opposition unto any of the parts ; while yet, by its equal and impartial administration in reference unto each, it doth withal maintain the whole body in a most delightful harmony, welfare, and correspondency. The sword never can, nor is it to be expected ever will do this, while the sovereignty is admitted and placed anywhere else than in the whole body of the people that have adhered to the cause, and by them be derived unto their successive representatives, as the most equal and impartial judicature for the effecting hereof.
Where there is, then, a righteous and good constitution of government, there is first, an orderly union of many under- standings together, as the public and common supreme judicature or visible sovereignty, set in a way of free and orderly exercise, for the directing and applying the use of the ruling power or the sword, to promote the interest and common welfare of the whole, without any disturbance or annoyance from within or from without ; and then, secondly, there is a like union and readiness of will in all the individ- uals, in their private capacities, to execute and obey (by all the power requisite, and that they are able to put forth) those sovereign laws and orders issued out by their own deputies and trustees.
A supreme judicature, thus made the representative of the
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whole, is that which, we say, will most naturally care, and most equally provide for the common good and safety. Though by this it is not denied but that the supreme power, when by free consent 'tis placed in a single person or in some few persons, may be capable also to administer right- eous government; at least, the body that gives this liberty, when they need not, are to thank themselves if it prove otherwise. But when this free and natural access unto gov- ernment is interrupted and declined, so as a liberty is taken by any particular member, or number of them, that are to be reputed but a part in comparison of the whole, to assume and engross the office of sovereign rule and power, and to impose themselves as the competent public judge of the safety and good of the whole, without their free and due consent, and to lay claim unto this, as those that find them- selves possessed of the sword (and that so advantageously as it cannot be recovered again out of their hands without more apparent danger and damage to the whole body than such attempts are worth), this is that anarchy that is the first rise and step to tyranny, and lays grounds of manifest confusion and disorder, exposing the ruling power to the next hand that on the next opportunity can lay hold on the sword, and so, by a kind of necessity, introduces the highest imposition and bondage upon the whole body, in compelling all the parts, though never so much against the true public interest, to serve and obey, as their sovereign rule and supreme authority, the arbitrary will and judgment of those that bring themselves into rule by the power of the sword, in the right only of a part that sets up itself in preference before, or at least in competition with, the welfare of the whole.
And if this, which is so essential to the wellbeing and right constitution of government, were once obtained, the disputes about the form would not prove so difficult, nor find such opposition, as to keeping the bone of contention and disunion, with much danger to the whole; for if, as the foundation of all, the sovereignty be acknowledged to reside originally in the whole body of adherents to this cause (whose natural and inherent right thereunto is of a far ancienter date than what is obtained by success of their
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arms, and so cannot be abrogated even by conquest itself, if that were the case), and then if, in consequence hereof, a supreme judicature be set up and orderly constituted, as naturally arising and resulting from the free choice and consent of the whole body taken out from among themselves, as flesh of their flesh and bone of their bone, of the same public spirit and nature with themselves, and the main be by this means secured, what could be propounded afterward as to the form of administration that would much stick?
Would a standing council of state, settled for life, in ref- erence to the safety of the Commonwealth, and for the main- taining intercourse and commerce with foreign states, under the inspection and oversight of the supreme judicature, but of the same fundamental constitution with themselves — would this be disliked? admitting their orders were binding, in the intervals of supreme national assemblies, so far only as consonant to the settled laws of the Commonwealth, the vacancy of any of which, by death or otherwise, might be supplied by the vote of the major part of themselves: nay, would there be any just exception to be taken if (besides both these) it should be agreed (as another part of the fundamental constitution of the government) to place that branch of sovereignty which chiefly respects the execution of laws in a distinct office from that of the legislative power (and yet subordinate to them and to the laws), capable to be intrusted into the hands of one single person, if need require, or in a greater number, as the legislative power should think fit; and, for the greater strength and honour unto this office, that the execution of all laws and orders (that are binding) may go forth in his or their name, and all disobedience thereunto, or contempt thereof, be taken as done to the people's sovereignty, whereof he or they bear the image or representation, subordinate to the legislative power, and at their will to be kept up and continued in the hands of a single person or more, as the experience of the future good or evil of it shall require?
Would such an office as this, thus stated, carry in it any in- consistency with a free state? Nay, if it be well considered, would it not rather be found of excellent use to the wellbeing of magistracy, founded upon this righteous bottom, that such
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a lieutenancy of the people's sovereignty in these three na- tions may always reside in some one or more person, in whose administration that which is reward and punishment may shine forth?
And if now it shall be objected that (notwithstanding all these cautions), should once this sovereignty be acknowl- edged to be in the diffused body of the people (though the adherents to this cause, not only as their natural, but as their acquired right by conquest), they would suddenly put the use and exercise of the legislative power into such hands as would, through their ill qualifiedness to the work, spoil all by mal-administration thereof, and hereby lose the cause in- stead of upholding and maintaining it.
The answer unto this is, first, that God, by his providence, hath eased our minds much in this solicitude by the course he hath already taken to fit and prepare a choice and selected number of the people unto this work, that are tried and refined by their inward and outward experiences in this great quarrel, and the many changes they have passed through; in respect whereof well qualified persons are to be found, if due care be but taken in the choice of them. And if herein this people of the Lord shall be waiting upon him for his guidance and presence with them, we may have grounds and hope that God (whose name hath all along been called upon in the maintaining of this cause) will pour out so abundantly of his spirit upon his people attending on him in righteous ways, and will also move their hearts to choose persons bearing his image into the magistracy, that a more glorious product may spring up out of this than at first we can ex- pect, to the setting up of the Lord himself as chief judge and lawgiver among us. And unto this the wisdom and honesty of the persons now in power may have an opportunity emi- nently to come into discovery; for in this case, and upon the grounds already laid, the very persons now in power are they unto whose lot it would fall to set about this prepara- tory work, and by their orders and directions to dispose the whole body, and bring them into the meetest capacity to effect the same, the most natural way for which would seem to be by a general council, or convention of faithful, honest, and discerning men, chosen for that purpose by the free
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consent of the whole body of adherents to this cause in the several parts of the nations, and observing the time and place of meeting appointed to them (with other circum- stances concerning their election) by order from the present ruling power, but considered as general of the army:
Which convention is not properly to exercise the legis- lative power, but only to debate freely, and agree upon the particulars that by way of fundamental constitutions shall be laid and inviolably observed as the conditions upon which the whole body so represented doth consent to cast itself into a civil and politic incorporation, and under the visible form and administration of government therein declared, and to be by each individual member of the body subscribed in testimony of his or their particular consent given there- unto: which conditions so agreed (and among them an Act * of Oblivion for one) will be without danger of being broken or departed from, considering of what it is they are the conditions, and the nature of the convention wherein they are made, which Is of the people represented in their highest state of sovereignty, as they have the sword in their hands unsubjected unto the rules of civil government, but what themselves orderly assembled for that purpose do think fit to make. And the sword, upon these conditions, subjecting itself to the supreme judicature thus to be set up, how sud- denly might harmony, righteousness, love, peace, and safety unto the whole body follow hereupon, as the happy fruit of such a settlement, if the Lord have any delight to be among us!
And this once put in a way, and declared for by the gen- eral and army (as that which they are clearly convinced, in the sight of God, is their duty to bring about, and which they engage accordingly to see done) how firmly and freely would this oblige the hearts and persons, the counsels and purses, the affections and prayers, with all that is in the power of this whole party to do, in way of assistance and strengthening the hands of those now in power, whatever straits and difficulties they may meet with in the mainte- nance of the public safety and peace !
This, then, being the state of our present affairs and dif- ferences, let it be acknowledged on all hands, and let all be
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convinced that are concerned, that there is not only a possi- bility, but a probability, yea, a compelling necessity, of a firm union in this great body, the setting of which in joint and tune again, by a spirit of meekness and fear of the Lord, is the work of the present day, and will prove the only remedy under God to uphold and carry on this blessed cause and work of the Lord in the three nations, that is already come thus far onward in its progress to its desired and expected end of bringing in Christ, the desire of all nations, as the chief Ruler among us.
Now unto this reuniting work let there be a readiness in all the dissenting parts from the highest to the lowest, by cheerfully coming forth to one another in a spirit of self- denial and love instead of war and wrath, and to cast down themselves before the Lord, who is the father of all their spirits, in self-abasement and humiliation, for the mutual offence they have been in, for some time past, one unto another, and great provocation unto God, and reproach unto his most glorious name, who expected to have been served by them with reverence and godly fear; for our God is a consuming fire.
And, as an inducement unto this, let us assure ourselves the means of effecting it will not prove so difficult as other things that have been brought about in the late war, if the minds and spirits of all concerned were once well and duly prepared hereunto by a kindly work of self-denial and self- abasement, set home by the spirit of the Lord upon their consciences, which, if he please, he may do we know not how soon: nay, we shall behold with a discerning eye the inside of that work which God hath been doing among us the three years last past : it would seem chiefly to have been his aim to bring his people into such a frame as this ; for in this tract of time there hath been (as we may say) a great silence in heaven, as if God were pleased to stand still and be as a looker on, to see what his people would be in their latter end, and what work they would make of it, if left to their own wisdom and politic contrivances. And as God hath had tlie silent part, so men, and that good men too, have had the active and busy part, and have, like themselves, made a great sound and noise, like the shout of a king in
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a mighty host ; which, while it hath been a sound only and no more, hath not done much hurt as yet; but the fear and jealousy thereby caused hath put the whole body out of frame, and made them apt to fall into great confusions and disorder.
And if there be thus arisen a general dissent and disagree- ment of parts (which is not, nor ought to be, accounted the less considerable because it lies hid and kept in under a patient silence), why should there not be as general a con- fession and acknowledgment of what each may find them- selves overtaken in, and cannot but judge themselves faulty for? this kind of vent being much better than to have it break out in flames of a forward and untimely wrathful spirit, which never works the righteousness of God, especially since what hath been done among us may probably have been more the effect of temptation than the product of any malicious design; and this sort of temptation is very common and in- cident to men in power (how good soever they may be) to be overtaken in, and thereupon do sudden unadvised actions, which the Lord pardons and overrules for the best, evidently making appear that it is the work of the weak and fleshly part, which his own people carry about with them too much unsubdued; and therefore the Lord thinks fit, by this means, to show them the need of being beholden to their spiritual part to restore them again, and bring them into their right temper and healthful constitution.
And thus, while each dissenting part is aggravating upon it self-faultiness and blame, and none excusing, but all con- fessing they deserve, in one sort or other, reproof, if not before men, yet in God's sight, who knows how soon it may please God to come into this broken, contrite, and self- denying frame of spirit in the good people within the three nations, and own them, thus truly humbled and abased, for his temple and the place of his habitation and rest, wherein he shall abide forever? of whom it may be said, God is in the midst of her, she shall not be moved; God shall help her, and that right early, or with his morning appearance; at which time he will sit silent no longer, but Heaven will speak again, and become active and powerful in the spirits and hearts of honest men, and in the works of his providences.
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when either they go out to fight by sea or by land, or remain in council and debates at home for the public weal, and again hear the prayers of his people, and visibly own them as a flock of holy men, as Jerusalem in her solemn feasts : *' I will yet for this be inquired of by the house of Israel, saith the Lord, to do it for them : and then they shall know that I the Lord their God am with them, and that they are my people, and that ye my flock, the flock of my pasture, are men that have showed yourselves weak, sinful men, and I am your God, that have declared myself an all-wise and powerful God, saith the Lord God."
POSTSCRIPT
Reader, — ^Upon the perusal of this discourse, thou wilt quickly perceive that these two things are principally aimed at in it by the author: First, to answer in some measure that which is called for by those in power, when they public- ly profess they desire nothing more than conviction, and to find out the hidden provocations which either have or yet may bring forth the Lord against these nations, in the way which at present they are in.
Secondly, to remove out of the minds and spirits of the honest party, that still agree in the reason and justice of the good old cause, all things of a private nature and selfish con- cern (the tendency whereof serves but to foment and strengthen wrath and divisions among them), and in place thereof to set before them that common and public interest, which, if with sincerity embraced, may be the means of not only procuring a firm union among them, but also of con- serving them herein.
In order to do this, the author hath not been willing so much to declare his own opinion, or deliver any positive con- clusions, as to discuss the business by way of question and answer, and thereby make as near a conjecture as he can of that wherein the several dissenting parts may with better satisfaction meet together, and agree upon a safe and righteous bottom, than to remain at the distance they do, to the apparent advantage of the common enemy, the approach- ing ruin of themselves, and needless hazard, if not loss, of
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the cause they have been so deeply engaged in; especially considering that, when once they shall be found beginning to come forth to one another in such a condescending, self- denying spirit, cleansed from the stain of hypocrisy and deceit, they may be well assured that light will spring up among them more and more unto a perfect day; and then those things which at present we have next in view, will prove as shadows ready to flee away before the morning brightness of Christ's heavenly appearance and second com- ing, through which they will be heightened and improved to their full maturity, to the bringing in that kingdom of his that shall never be moved.
And because an essay hath been already made in a private way to obtain the first thing, that is to say, conviction, which chiefly is in the hand of the Lord to give, the same obligation lies upon the author, with respect to the second, for the ex- posing of it as now it is unto public view, and therein leaving it also with the Lord for his blessing thereunto.
ELIOT'S BRIEF NARRATIVE' (1670)
[John Eliot (1604-1690), **The Apostle to the Indians,** came to New England in 163 1, and began his ministrations to the Indians in their own language in 1646. His great work, the translation of the Bible into the tongue of the Massachusetts Indians, was finished in 1658 and published 1661 — 63. He wrote a number of reports on the progress of Christianity among the Indians, of which the Brief Narrative was the last. This pamphlet gives an interesting picture of the conditions of evangelisation among the natives at the end of the first generation of intercourse with the colonists. The move- ment which was so vigorously started by Eliot was checked before his death by King Philip's war, 1675-6.]
To THE Right Worshipful the Commissioners under his Majesties' Great-Seal, for Propagation of the Gos- pel AMONGST the POOR BLIND INDIANS IN NeW-EnGLAND.
Right Worshipful and Christian Gentlemen :
THAT brief Tract of the present state of the Indian- Work in my hand, which I did the last year on the sudden present you with when you call'd for such a thing; That falling short of its end, and you calling for a renewal thereof, with opportunity of more time, I shall begin with our last great motion in that Work done this Summer, because that will lead me to begin with the state of the Indians under the hands of my Brethren Mr. Mahew and Mr. Bourn.
Upon the 17th day of the 6th month, 1670, there was a Meeting at Maktapog near Sandwich in Plimouth-Paitent, to gather a Church among the Indians: There were present
^The full title of this tract was as follows:
A Brief Narrative of the Progress of the Gospel amongst the Indians in New England, in the Year 1670, given in by the Reverend Mr. John Elliot, Minister of the Gospel there, in a letter by him directed to the Right Worshipful! the Commissioners under his Majesties Great-Seal for Propagation of the Gospel amongst the poor blind Natives in those United Colonies. LONDON, Printed for John Allen, formerly living in Little-Britain at the Rising-Sun, and now in Wentworth strtet near Bell-Lane, 1671.
247
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six of the Magistrates, and many Elders, (all of them Mes- sengers of the Churches within that Jurisdiction) in whose presence, in a day of Fasting and Prayer, they making con- fession of the Truth and Grace of Jesus Christ, did in that solemn Assembly enter into Covenant, to walk together in the Faith and Order of the Gospel; and were accepted and declared to be a Church of Jesus Christ. These Indians being of kin to our Massachuset-Indians who first prayed unto God, conversed with them, and received amongst them the light and love of the Truth; they desired me to write to Mr. Lever edge to teach them: He accepted the Motion: and performed the Work with good success; but afterwards he left that place, and went to Long-Island, and there a godly Brother, named Richard Bourne (who purposed to remove with Mr. Leveredge, but hindered by Divine Provi- dence) undertook the teaching of those Indians, and hath continued in the work with good success to this day ; him we ordained Pastor : and one of the Indians^ named lude, should have been ordained Ruling-Elder, but being sick at that time, advice was given that he should be ordained with the first opportunity, as also a Deacon to manage the present Sab- bath-day Collections, and other [4] parts of that Office in their season. The same day also were they, and such of their Children as were present, baptized.
From them we passed over to the Vineyard, where many were added to the Church both men and women, and were baptized all of them, and their Children also with them; we had the Sacrament of the Lords Supper celebrated in the Indian-Church, and many of the English-Church gladly joyned with them; for which cause it was celebrated in both languages. On a day of Fasting and Prayer, Elders were ordained, two Teaching-Elders, the one to be a Preacher of the Gospel, to do the Office of a Pastor and Teacher; the other to be a Preacher of the Gospel, to do the Office of a Teacher and Pastor, as the Lord should give them ability and opportunity; Also two Ruling-Elders, with advice to ordain Deacons also, for the Service of Christ in the Church. Things were so ordered by the Lord's guidance, that a Foundation is laid for two Churches more; for first, these of the Vineyard dwelling at too great a distance to
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enjoy with comfort their Sabbath-communion in one place, Advice was given them, that after some experience of walking together in the Order and Ordinances of the Gospel, they should issue forth into another Church; and the Offi- cers are so chosen, that when they shall do so, both Places are furnished with a Teaching and Ruling-Elder.
Also the Teacher of the Praying Indians of Nantuket, with a Brother of his were received here, who made good Confessions of Jesus Christ; and being asked, did make re- port unto us that there be about ninety Families who pray unto God in that Island, so effectual is the Light of the Gospel among them. .Advice was given, that some of the chief Godly People should joyn to this Church, (for they frequently converse together, though the Islands be seven leagues asunder) and after some experience of walking in the Order of the Gospel, they should issue forth into Church-estate among themselves, and have Officers ordained amongst them.
The Church of the Vineyard were desirous to have chosen Mr. Mahew to be their Pastor : but he declined it, conceiving that in his present capacity he lieth under greater advantage to stand their Friend, and do them good, to save them from the hands of such as would bereave them of their Lands, &c., but they shall alwayes have his counsel, instruction and man- agement in all their Church-affairs, as hitherto they have had; he will die in this service of Jesus Christ. The Pray- ing-Indians of both these islands depend on him, as God's Instrument for their good. [5] Advice also was given for the setling of Schools; every Child capable of learning, equally paying, whether he make use of it or no : Yet if any should sinfully neglect Schooling their Youth, it is a trans- gression liable to censure under both Orders, Civil and Eccle- siastical, the offence being against both. So we walk at Natick.
In as much as now we have ordained Indian Officers unto the Ministry of the Gospel, it is needful to add a word or two of Apology: I find it hopeless to expect English Officers in our Indian Churches; the work is full of hardship, hard labour, and chargeable also, and the Indians not yet capable to give considerable support and maintenance; and Men have
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bodies, and must live of the Gospel : And what comes from England is liable to hazard and uncertainties. On such grounds as these partly, but especially from the secret wise governance of Jesus Christ, the Lord of the Harvest, there is no appearance of hope for their souls feeding in that way : they must be trained up to be able to live of themselves in the ways of the Gospel of Christ; and through the riches of God's Grace and Love, sundry of themselves who are expert in the Scriptures, are able to teach each other: An English young man raw in that language, coming to teach among our Christian-/n(iia«^, would be much to their loss; there be of themselves such as be more able, especially being advantaged that he speaketh his own language, and knoweth their manners. Such English as shall hereafter teach them, must begin with a People that begin to pray unto God, (and such opportunities we have many) and then as they grow in knowledge, he will grow (if he be diligent) in ability of speech to communicate the knowledge of Christ unto them. And seeing they must have Teachers amongst themselves, they must also be taught to be Teachers: for which cause I have begun to teach them the Art of Teaching, and I find some of them very capable. And while I live, my pur- pose is, (by the grace of Christ assisting) to make it one of my chief cares and labours to teach them some of the Liberal Arts and Sciences, and the way how to analize, and lay out into particulars both the Works and Word of God; and how to communicate knowledge to others method- ically and skilfully, and especially the method of Divinity. There be sundry Ministers who live in an opportunity of be- ginning with a People, and for time to come I shall cease my importuning of others, and onely fall to perswade such unto this service of Jesus Christ, it being one part of our Minis- terial Charge to preach to the World in the Name of Jesus, and from amongst them to gather Subjects to his holy King- dom. The Bible, and the Catechism drawn [6] out of the Bible, are general helps to all parts and places about us, and are the ground- work of Community amongst all our /nc?iflM-Churches and Christians.
I find a blessing, when our Church of Natick doth send forth fit Persons unto some remoter places, to teach them the
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fear of the Lord. But we want maintenance for that Service; it is a chargeable matter to send a Man from his Family: The Labourer is worthy of his Hire: And when they go only to the High-way es and Hedges, it is not to be expected that they should reward them: If they believe and obey their Message, it is enough. We are determined to send forth some (if the Lord will, and that we live) this Autumn, sundry ways. I see the best way is, up and be doing: In all labour there is profit; Seek and ye shall find. We have Christ's Example, his Promise, his Presence, his Spirit to assist; and I trust that the Lord will find a way for your encouragement.
Natick is our chief Town, where most and chief of our Rulers, and most of the Church dwells; here most of our chief Courts are kept; and the Sacraments in the Church are for the most part here administred: It is (by the Divine Providence) seated well near in the center of all our pray- ing Indians, though Westward the Cords of Christ's Tents are more enlarged. Here we began Civil Government in the year 1650. And here usually are kept the General-Trainings, which seven years ago looked so big that we never had one since till this year, and it was at this time but a small appearance. Here we have two Teachers, John Speen and Anthony; we have betwixt forty and fifty Communicants at the Lord's Table, when they all appear, but now, some are dead, and some decriped with age; and one under Censure, yet making towards a recovery; one died here the last Winter of the Stone, a temperate, sober, godly man, the first Indian that ever was known to have that disease; but now another hath the same disease: Sundry more are pro- posed, and in way of preparation to jo)ni unto the Church.
Ponkipog, or Pakeunit, is our second Town, where the Sachems of the Bloud (as they term their Chief Royal-Line) had their Residence and Rights, which are mostly Alienated to the English Towns: The last Chief Man, of that Line, was last year slain by the Mauqusogs, against whom he rash- ly (without due Attendants and Assistance, and against Counsel) went; yet all, yea, his Enemies say. He died valiantly; they were more afraid to kill him, than he was to die; yet being de- [7] serted by all (some knowingly sajf
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through Treason) he stood long, and at last fell alone: Had he had but lo Men, yea 5 in good order with him, he would have driven all his Enemies before him. His Brother was resident with us in this Town, but he is fallen into sin, and from praying to God. Our Chief Ruler is Ahauton, an old stedfast and trusty friend to the English, and loveth his Country. He is more loved than feared; the reins of his bridle are too long. Wakan is sometimes necessarily called to keep Courts here, to add life and zeal in the punishment of Sinners. Their late Teacher, William, is deceased; He was a man of eminent parts, all the English acknowledge him, and he was known to many: He was of a ready wit, sound judgment, and affable; he is gone unto the Lord; And William, the Son of Ahauton, is called to be Teacher in his stead. He is a promising young-man, of a single and upright heart, a good judgment, he Prayeth and Preacheth well, he is studious and industrious, and well accounted of among the English.
Hassunnimesut is the next Town in order, dignity, and antiquity; sundry of our chief Friends in the great work of Praying to God, came from them, and there lived their Pro- genitors, and there lieth their Inheritance, and that is the place of their desires. It lieth upon Nichmuke River; the people were well known to the English so long as Connecticot Road lay that way, and their Religion was judged to be real by all that travelled that journey, and had occasion to lodge, especially to keep a Sabbath among them. The Ruler of the Town is Anuweekin, and his brother Tuppukkoowillin is Teacher, both sound and godly Men. This Ruler, last Win- ter, was overtaken with a Passion, which was so observable, that I had occasion to speak with him about it ; he was very penitent; I told him, That as to man, I, and all men were ready to forgive him. Ah! said he, / find it the greatest difficulty to forgive myself. For the encouragement of this place, and for the cherishing of a new Plantation of Praying Indians beyond them, they called Monatunkanet to be a Teacher also in that Town, and both of them to take care of the new Praying-Town beyond them. And for the like encouragement. Captain Gookins joyned Petahheg with Anu- weekin, The aged Father of this Ruler and Teacher, was
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last year Baptized, who hath many Children that fear God. In this place we meditate ere long (if the Lord will, and that we live) to gather a Church, that so the Sabbath-Com- munion of our Christian Indians may be the more agree- [8] able to the Divine Institution, which we make too bold with while we live at such distance.
OgquonikongquamesMt is the next Town; where, how we have been afflicted, I may not say. The English Town called Marlborough doth border upon them, as did the lines of the Tribes of Judah and Benjamin; the English Meeting-house standeth within the line of the Indian Town, although the contiguity and co-inhabitation is not barren in producing matters of interfering; yet our godly Indians do obtain a good report of the godly English, which is an argument that bringeth light and evidence to my heart, that our Indians are really godly. I was very lately among them; they desired me to settle a stated Lecture amongst them, as it is in sundry other Praying Towns, which I did with so much the more gladness and hope of blessing in it, be- cause through Grace the Motion did first spring from them- selves. Solomon is their Teacher, whom we judge to be a serious and sound Christian; their Ruler is Owannamug, T^ose grave, faithful, and discreet Conversation hath pro- cured him real respect from the English. One that was a Teacher in this place, is the man that is now under Censure in the Church; his sin was that adventitious sin which we have brought unto them, Drunkenness, which was never known to them before they knew us English. But I account it our duty, and it is much in my desire, as well to teach them Wisdom to Rule such heady Creatures, as skill to get them to be able to bridle their own appetites, when they have means and opportunity of high-spirited enticements. The Wisdom and Power of Grace is not so much seen in the beg- garly want of these things, as in the bridling of our selves in the use of them. It is true Dominion, to be able to use them, and not to abuse ourselves by them.
Nashope is our next Praying Town, a place of much Afflic- tion ; It was the chief place of Residence, where Tahattawans lived, a Sachem of the Blood, a faithful and zealous Chris- tian, a strict yet gentle Ruler; he was a Ruler of 50 in our
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Civil Order; and when God took him, a chief man in our Israel was taken away from us. His only Son was a while vain, but proved good, expert in the Scripture, was Elected to Rule in his Fathers place, but soon died, insomuch that this place is now destitute of a Ruler. The Teacher of the place is John Thomas, a godly understanding Christian, well esteemed of by the English: his Father was killed by the Mauquaogs, shot to death as he was in [9] the River doing his Eele-wyers. This place lying in the Road-way which the Mauquaogs haunted, was much molested by them, and was one year wholly deserted; but this year the People have taken courage and dwell upon it again.
In this place after the great Earthquake, there was some eruption out of the Earth, which left a great Hiatus or Cleft a great way together, and out of some Cavities under great Rocks, by a great Pond in that place, there was a great while after often heard an humming noise, as if there were frequent eruptions out of the Ground at that place: yet for Healthfulness the place is much as other places be. For Religion, there be amongst them some Godly Christians, who are received into the Church, and baptized, and others look- ing that way.
Wamesut is our next Praying-Town ; it lyeth at the bottom of the great Falls, on the great River Merymak, and at the falling-in of Concord River; the Sachem of this Place is named Nomphon, said to be a Prince of the Bloud, a Man of a real Noble Spirit: A Brother of his was slain by the Mauquaogs as he was upon a Rock fishing in the great River, In revenge whereof he went in the forementioned rash Ex- pedition, but had such about him, and was so circumspect, that he came well off, though he lost one principal Man. This place is very much annoyed by the Mauquaogs, and have much ado to stand their ground.
In this Place Captain Gookins ordered a Garrison to be kept the last year, which Order while they attended they were safe; but when the Northern Sachems and Souldiers came, who stirred up ours to go with them on their unsuc- cessful Expedition, the Town was for the most part s^'at- ter'd, and their Corn spoyled.
The Teacher of this Place is named George: they have
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not much esteem for Religion, but I am hopefully perswaded of sundry of them; I can go unto them but once in a year.
Panatuket is the upper part of Merimak-FBXXs; so called, because of the noise which the Waters make. Thither the Penagzvog-Indians are come, and have built a great Fort; Their Sachems refused to pray to God, so signally and sin- fully, that Captain Gookins and my self were very sensible of it, and were not without some expectation of some inter- posure of a Divine-Hand, which did eminently come to pass; for in the forenamed expedition they joyned with the North- ern Sachems, [lo] and were all of them cut off; even all that had so signally refused to pray unto God were now as sig- nally rejected by God, and cut off. I hear not that it was ever known, that so many Sachems and Men of Note were killed in one imprudent Expedition, and that by a few scat- tered people; for the Mauquaogs were not imbodied to re- ceive them, nor prepared, and few at home, which did much greaten the Overthrow of so many great Men, and shews a divine over-ruling hand of God. But now, since the Pen- aguog-Sachems are cut off, the People (sundry of them) dwelling at Panatuket-Fort do bow the ear to hear, and sub- mit to pray unto God; to whom Jethro, after he had confest Christ and was baptized, was sent to preach Christ to them.
Magunkukquok is another of our Praying-Towns at the remotest Westerly borders of Natick; these are gathering to- gether of some Nipmuk Indians who left their own places, and sit together in this place, and have given up themselves to pray unto God. They have called Pomham to be their Ruler, and Simon to be their Teacher. This latter is ac- counted a good and lively Christian; he is the second man among the Indians that doth experience that afflicting disease of the Stone. The Ruler hath made his Preparatory Con- fession of Christ, and is approved of, and at the next oppor- tunity is to be received and baptized.
I obtained of the General-Court a Grant of a Tract of Land, for the settlement and encouragement of this People; which though as yet it be by some obstructed, yet I hope we shall find some way to accomplish the same.
Quanatusset is the last of our Praying-Towns, whose beginnings have received too much discouragement; but yet
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the Seed is alive: they are frequently with me; the work is at the birth, there doth only want strength to bring forth. The care of this People is committed joyntly to Monatunk- anit, and Tup punk koowillin, the Teachers of Hassunemesut, as is abovesaid; and I hope if the Lord continue my life, 1 shall have a good account to give of that People.
Thus I have briefly touched some of the chiefest of our present Affairs, and commit them to your Prudence, to do [ii] with them what you please; committing your Selves, and all your weighty Affairs urlto the Guidance and Blessing of the Lord, I rest,
Your Worships to serve you in the Service of our Lord Jesus.
John Elliot.
Boxhury, this 20th of the 7th month, I07O.
DECLARATION OF RIGHTS
(1765)
[On the passage of the Stamp Act by the British Pariiament in March* 1765, requiring that all legal instruments used in the Amer- ican colonies should bear a government stamp in order to be valid, delegates from nine colonies met in New York on October 7 of the same year, to protest against this and other encroachments upon their rights, and drew up this Declaration. The Stamp Act was repealed in March, 1766.]
THE members of this congress, sincerely devoted, with the warmest sentiments of affection and duty to his majesty's person and government, inviolably attached to the present happy establishment of the protestant succes- sion, and with minds deeply impressed by a sense of the pres- ent and impending misfortunes of the British colonies on this continent; having considered as maturely as time will per- mit, the circumstances of the said colonies, esteem it our indispensable duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties of the colonists, and of the grievances under which they labour, by reason of several late acts of parlia-^ ment
1. That his majesty's subjects in these colonies, owe the * same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body the parliament of Great Britain.
2. That his majesty's Hege subjects in these colonies, are entitled to all the inherent rights and liberties of his natural born subjects, within the kingdom of Great Britain.
3. That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them but with their own consent, given personally, or by their representatives.
4. That the people of these colonies are not, and, from
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their local circumstances, cannot be, represented m the House of Commons in Great Britain.
5. That the only representatives of the people of these colonies, are persons chosen therein by themselves; and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.
6. That all supplies to the crown being free gifts of the people, it is unreasonable and inconsistent with the prin- ciples and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists,
7. That trial by jury. Is the inherent and invaluable right of every British subject in these colonies.
8. That the late act of parliament, entitled, an act for granting and applying certain stamp duties, and other duties, in the British colonies and plantations in America, &c, by imposing taxes on the inhabitants of these colonies, and the said act, and several other acts, by extending the jurisdiction of the courts of admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.
9. That the duties imposed by several late acts of parlia- ment, from the peculiar circumstances of these colonies, will be extremely burdensome and grievous; and from the scarcity of specie, the payment of them absolutely imprac- ticable.
10. That as the profits of the trade of these colonies ulti- mately center in Great Britain, to pay for the manufactures which they are obliged to take from thence, they eventually contribute very largely to all supplies granted there to the crown.
11. That the restrictions imposed by several late acts of parliament on the trade of these colonies, will render them unable to purchase the manufactures of Great Britain.
12. That the increase, prosperity and happiness of these colonies, depend on the full and free enjo3rments of their rights and liberties, and an intercourse with Great Britain mutually affectionate and advantageous.
13. That it is the right of the British subjects in these colonies, to petition the king, or either house of parliament.
AMERICAN HISTORICAL DOCUMENTS 159
Lastly, That it is the indispensable duty of these colonies, to the best of sovereigns, to the mother country, and to themselves, to endeavour by a loyal and dutiful address to his majesty, and humble applications to both houses of par- liament, to procure the repeal of the act for granting and applying certain stamp duties, of all clauses of any other acts of parliament, whereby the jurisdiction of the admiralty is extended as aforesaid, and of the other late acts for the restriction of American commerce.
THE DECLARATION OF
INDEPENDENCE
(1776)
[In the third session of the second continental congress, Richard Henry Lee of Virginia proposed, and John Adams of Massachusetts seconded, a resolution declaring the United Colonies free and in- dependent states; and Thomas Jefferson, John Adams, Roger Sher- man, and Robert Livingstone were appointed a committee to draw up a declaration of independence. This famous document, composed almost entirely by Jefferson, was adopted unanimously on July 4, 1776.]
WHEN in the Course of human events, it becomes nec- essary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature^s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriv- ing their just powers from the consent of the governed, That whenever any Form of Government becomes destruc- tive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing
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AMERICAN HISTORICAL DOCUMENTS 161
the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Des- potism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Col- onies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of imme- diate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommoda- tion of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unu- sual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws of Natural- ization of Foreigners ; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.
BC XLUI (6)
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He has obstructed the Administration of Justice, by re- fusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.
He has kept among us, in times of peace. Standing Armies without the Consent of our legislature.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws ; giving his Assent to their acts of pretended legislation :
For quartering large bodies of armed troops among us :
For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabi- tants of these States:
For cutting off our Trade with all parts of the world :
For imposing taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pre- tended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valu- able Laws, and altering fundamentally the Forms of our Governments :
For suspending our own Legislature, and declaring them- selves invested with Power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
AMERICAN HISTORICAL DOCUMENTS 163
He IS at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to be- come the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the Inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Peti- tions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People.
Nor have We been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the cir- cumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably inter- , rupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of man- kind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political
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connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, con- clude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
John Hancock.
New Hampshire JosiAH Bartlett Matthew Thornton
Wm. Whipple
Saml. Adams John Adams
Step. Hopkins
Massachusetts Bay
Elbridge Gerry RoBT. Treat Paine
Rhode Island
William Ellery
Connecticut Roger Sherman Wm. Williams
Sam'el Huntington Oliver Wolcott
Wm. Floyd Phil. Livingston
New York
Frans. Lewis Lewis Morris
RiCHD. Stockton Jno. Witherspoon Eras. Hopkinson
RoBT. Morris Benjamin Rush Benja. Franklin John Morton Geo. Clymer
New Jersey
John Hart Abra. Clark
Pennsylvania
Jas. Smith Geo. Taylor James Wilson Geo. Ross
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165
CiESAR Rodney Geo. Read
Samuel Chase Wm. Paca
George Wythe Richard Henry Lee Th. Jefferson Benja. Harrison
Delaware
Tho. M'Kean
Maryland
Thos. Stone
Charles Carroll of Car- rollton
Virginia
Thos. Nelson^ jr. Francis Lightfoot Lee Carter Braxton
Wm. Hooper Joseph Hewes
North Carolina
John Penn
South Carolina Edward Rutledge Arthur Middleton
Thos. Heyward, junr Thomas Lynch, junr
Button Gwinnett Lyman Hall
Georgia
Geo. Walton
THE MECKLENBURG
DECLARATION OF INDEPENDENCE
(1775)
[On April 30, 1819, the Raleigh (N. C.) Register published the following document, said to have been adopted by the Committee of Mecklenburg county, North Carolina, on May 20, 1775, the day after the receipt of the news of the battle of Lexington. The similarity of some of its phrases (here italicized) to phrases in the Declaration of Independence raised questions as to plagiarism on Jefferson's part, or, on the other hand, as to the authenticity of the Mecklenburg document. It is clear that Jefferson never heard of it before 18 19; and the explanation most commonly adopted is, that it is a compilation, based in part on general recollections of certain resolutions, still extant, which were drawn up by the com- mittee-men of Mecklenburg on May 31, 1775.]
1. T^ESOLVED, That whosoever directly or indirectly J\^ abetted, or in any way, form, or manner, counte- nanced the unchartered and dangerous invasion of
our rights, as claimed by Great Britain, is an enemy to this Country — to America — and to the inherent and inalienable rights of man.
2. Resolved, That we the citizens of Mecklenburg County, do hereby dissolve the political hands which have connected us to the Mother Country, and hereby absolve ourselves from all allegiance to the British Crown, and abjure all political connection, contract, or association, with that Nation, who have wantonly trampled on our rights and liberties — and inhumanly shed the innocent blood of Ameri- can patriots at Lexington.
3. Resolved, That we do hereby declare ourselves a free and independent people, are, and of right ought to be, a sovereign and self-governing Association, under the control of no power other than that of our God and the General Government of the Congress ; to the maintenance of which in- dependence, we solemnly pledge to each other, our mutual co- operation, our lives, our fortunes, and our most sacred honor.
4. Resolved, That as we now acknowledge the existence
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AMERICAN HISTORICAL DOCUMENTS 167
and control of no law or legal ofiScer, civil or military, within this County, we do hereby ordain and adopt, as a rule of life, all, each and every of our former laws — ^where, never- theless, the Crown of Great Britain never can be considered as holding rights, privileges, immunities, or authority therein. 5. Resolved, That it is also further decreed, that all, each and every military officer in this County, is hereby re- instated to his former command and authority, he acting conformably to these regulations, and that every member present of this delegation shall henceforth be a civil officer, viz. a Justice of the Peace, in the character of a * Commit^ tee-man/ to issue process, hear and determine all matters of controversy, according to said adopted laws, and to pre- serve peace, and union, and harmony, in said County, and to use every exertion to spread the love of country and fire of freedom throughout America, until a more general and organized government be established in this province."
ARTICLES OF CONFEDERATION
[The same continental congress which passed the Declaration of Independence, appointed a committee " to prepare and digest the form of confederation to be entered into between these colonies." On July 12, 1776, the committee reported a draft of these articles; and after many changes the congress adopted Ihem on November IS. T-777- They did not, however, become operative till they had been adopted by all the individual states, the last of which, Maryland, finally consented on March i, 178.1. The articles were superseded by the Constitution in 1789.]
to all to whom these presents shall come, we the undersigned delegates of the states affixed to our Names send greeting.
WHEREAS the Delegates of the United States of America in Congress assembled did on the fif- teenth day of November in the year of our Lord One Thousand Seven Hundred and Seventy-seven, and in the Second Year of the Independence of America agree to certain articles of Confederation and perpetual Union be- tween the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North- Carolina, South-Carolina and Georgia in the Words follow- ing, viz.
*' Articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhode- island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia."
Article I. The stile of this confederacy shall be "The United States of America."
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AMERICAN HISTORICAL DOCUMENTS 169
Article II. Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Article III. The said States hereby severally enter into a firm league of friendship with each other, for their com- mon defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.
Article IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the differ- ent States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice ex- cepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, pro- vided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant; pro- vided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.
If any Person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall upon demand of the Governor or Executive power, of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence.
Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State.
Article V. For the more convenient management of the general interest of the United States, delegates shall be an- nually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday
170 AMERICAN HISTORICAL DOCUMENTS
in November, in every year, with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year.
No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a dele- gate, be capable of holding any office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind.
Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the com- mittee of the States.
In determining questions in the United States, in Con- gress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Con- gress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Con- gress, except for treason, felony, or breach of the peace.
Article VI. No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty, con- federation or alliance whatever between them, without the consent of the United States in Congress assembled, speci- fying accurately the purposes for which the same is to be entered into, and how long it shall continue.
No State shall lay any imposts or duties, which may inter- fere with any stipulations in treaties, entered into by the United States in Congress assembled, with any king, prince
AMERICAN HISTORICAL DOCUMENTS 171
or state, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence 6i such State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received cer- tain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay, till the United States in Congress assembled can be consulted: nor shall any State grant com- missions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the kingdom or state and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.
Article VII. When land-forces are raised by any State for the common defence, all officers of or under the rank of colonel, shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the ap- pointment.
Article VIII. All charges of war, and all other expenses
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that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress as- sembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improve- ments thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.
The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States within the time agreed upon by the United States in Congress assembled.
Article IX. The United States in Congress assembled, shall have the sole and exclusive right and power of deter- mining on peace and war, except in the cases mentioned in the sixth article — of sending and receiving ambassadors — entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities what- soever—of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated — of granting letters of marque and reprisal in times of peace — appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, pro- vided that no member of Congress shall be appointed a judge of any of the said courts.
The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with
AMERICAN HISTORICAL DOCUMENTS 173
another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree. Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be com- missioners or judges, to hear and finally determine the con- troversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge suffi- cient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before pre- scribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, the judg- ment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Con- gress for the security of the parties concerned: provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, " well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, aflfection or hope of reward :" provided also that no
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State shall be deprived of territory for the benefit of the United States.
All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdiction as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have orig- inated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respect- ing territorial jurisdiction between different States.
The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States — ^fixing the standard of weights and measures throughout the United States — regu- lating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legis- lative right of any State within its own limits be not in- fringed or violated — establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing thro' the same as may be requisite to defray the expenses of the said office — appointing all officers of the land forces, in the service of the United States, excepting regimental officers — ^appointing all the officers of the naval forces, and com- missioning all officers whatever in the service of the United States — ^making rules for the government and regulation of the said land and naval forces, and directing their opera- tions.
The United States in Congress assembled shall have au- thority to appoint a committee, to sit in the recess of Con- gress, to be denominated "a Committee of the States," and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction — to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of
AMERICAN HISTORICAL DOCUMENTS 175
three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appro- priate and apply the same for defraying the public expenses — to borrow money, or emit bills on the credit of the United States, transmitting every half year to the respec- tive States an account of the sums of money so borrowed or emitted, — to build and equip a navy — to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be bind- ing, and thereupon the Legislature of each State shall ap- point the regimental officers, raise the men and cloath, arm and equip them in a soldier like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled: but if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, cloathed, armed and equipped in the same as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared outside of the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so cloathed, armed and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.
The United States in Congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and wel- fare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of
176 AMERICAN HISTORICAL DOCUMENTS
the army or navy, unless nine States assent to the same : nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of a majority of the United States in Congress assembled.
The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secresy; and the yeas and nays of the delegates of each State on any ques- tion shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the Legislatures of the several States.
Article X. The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Con- gress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with; pro- vided that no power be delegated to the said committee, for the exercise of which, by the articles of confederation, the voice of nine States in the Congress of the United States assembled is requisite.
Article XI. Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.
Article XII. All bills of credit emitted, monies bor- rowed and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledged.
Article XIII. Every State shall abide by the deter- minations of the United States in Congress assembled, on
AMERICAN HISTORICAL DOCUMENTS 177
all questions which by this confederation are submitted to them. And the articles of this confederation shall be invio- lably observed by every State, and the Union shall be per- petual ; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislatures of every State.
And whereas it hath pleased the Great Governor of the World to incline the hearts of the Legislatures we respec- tively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that pur- pose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: and we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said con- federation are submitted to them. And that the articles thereof shall be inviolably observed by the States we re- spectively represent, and that the Union shall be perpetual.
In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsyl- vania the ninth day of July in the year of our Lord one thousand seven hundred and seventy-eight, and in the third year of the independence of America.
On the part & behalf of the State of New Hampshire
JosiAH Bartlett John Wentworth^ Junr
August 8th, 1778
On the part and behalf of the State of Massachusetts Bay
John Hancock Francis Dana
Samuel Adams James Lovell
Elbridge Gerry Samuel Holten
178 AMERICAN HISTORICAL DOCUMENTS
On the part and behalf of the State of Rhode Island and Providence Plantations
William Ellery John Collins
Henry Marchant
On the part and behalf of the State of Connecticut
Roger Sherman Titus Hosmer
Samuel Huntington Andrew Adams
Oliver Wolcott
On the part and behalf of the State of New York
Jas. Duane Gouv. Morris
Fra. Lewis Wm. Duer
On the part and in behalf of the State of New Jersey Novr. 26, lyyS
Jno. Witherspoon Nathl. Scudder
On the part and behalf of the State of Pennsylvania
RoBT. Morris William Clingan
Daniel Roberdeau Joseph Reed, 226. July,
Jno. Bayard Smith 1778
On the part & behalf of the State of Delaware Thos. M'Kean, Feby. 12, John Dickinson, May 5th,
1779 1779
Nicholas Van Dyke
On the part and behalf of the State of Maryland John Hanson, March i, Daniel Carroll, Mar. i, 1781 1781
AMERICAN HISTORICAL DOCUMENTS 179
On the part and behalf of the State of Virginia
Richard Henry Lee Jno. Harvie
John Banister Francis Lightfoot Lee
Thomas Adams
On the part and behalf of the State of No. Carolina
John Penn, July 21, 1778 Jno. Williams Corns. Harnett
On the part & behalf of the State of South Carolina
Henry Laurens Richd. Hutson
William Henry Drayton Thos. Heyward, Junr Jno. Matthews
On the part & behalf of the State of Georgia
Edwd. Telfair Edwd. Langworthy
Jno. Walton, 24th July, 1778
I
ARTICLES OF CAPITULATION YORKTOWN
(1781)
[The surrender of Cornwallis, arranged in these articles, virtually brought to a close the hostilities in the war between Great Britain and her American colonies, and assured the independence of the United States.]
Settled between his Excellency General Washington, Com- mander-in-chief of the combined Forces of America and France;- his Excellency the Count de Rochambeau, Lieutenant-General of the Armies of the King of France, Great Cross of the royal and military Order of St. Louis, commanding the auxiliary Troops of his Most Christian Majesty in America; and his Excellency the Count de Grasse, Lieutenant-General of the Naval Armies of his Most Christian Majesty, Commander of the Order of St. Louis, Commander-in-Chief of the Naval Army of France in the Chesapeake, on the one Part; and the Right Honorable Earl Cornwallis, Lieu- tenant-General of his Britannic Majesty's Forces, com- manding the Garrisons of York and Gloucester; and Thomas Symonds, Esquire, commanding his Britannic Majesty's Naval Forces in York River in Virginia, on the other Part.
A RTICLE L The garrisons of York and Gloucester, in- l\ eluding the officers and seamen of his Britannic Maj- -^ — ^ esty's ships, as well as other mariners, to surrender themselves prisoners of war to the combined forces of America and France. The land troops to remain prisoners to the United States, the navy to the naval army of his Most Christian Majesty. Granted.
180
AMERICAN HISTORICAL DOCUMENTS 181
Article II. The artillery, arms, accoutrements, military chest, and public stores of every denomination, shall be delivered unimpaired to the heads of departments appointed to receive them.
Granted.
Article III. At twelve o'clock this day the two redoubts on the left flank of York to be delivered, the one to a de- tachment of American infantry, the other to a detachment of French grenadiers.
Granted.
The garrison of York will march out to a place to be ap- pointed in front of the posts, at two o'clock precisely, with shouldered arms, colors cased, and drums beating a British or German march. They are then to ground their arms, and return to their encampments, where they will remain until they are despatched to the places of their destination. Two works on the Gloucester side will be delivered at one o'clock to a detachment of French and American troops appointed to possess them. The garrison will march out at three o'clock in the afternoon; the cavalry with their swords drawn, trumpets sounding, and the infantry in the manner pre- scribed for the garrison of York. They are likewise to re- turn to their encampments until they can be finally marched off.
Article IV. Officers are to retain their side-arms. Both officers and soldiers to keep their private property of every kind; and no part of their baggage or papers to be at any time subject to search or inspection. The baggage and papers of officers and soldiers taken during the siege to be likewise preserved for them.
Granted.
It IS understood that any property obviously belonging to the inhabitants of these States, in the possession of the gar- rison, shall be subject to be reclaimed.
Article V. The soldiers to be kept in Virginia, Mary- land, or Pennsylvania, and as much by regiments as possible, and supplied with the same rations of provisions as are
182 AMERICAN HISTORICAL DOCUMENTS
allowed to soldiers in the service of America. A field-officer from each nation, to wit, British, Anspach, and Hessian, and other officers on parole, in the proportion of one to fifty men to be allowed to reside near their respective regiments, to visit them frequently, and be witnesses of their treatment; and that their officers may receive and deliver clothing and other necessaries for them, for which passports are to be granted when applied for. Granted.
Article VI. The general, stafif, and other officers not employed as mentioned in the above articles, and who choose it, to be permitted to go on parole to Europe, to New York, or to any other American maritime posts at present in the possession of the British forces, at their own option; and proper vessels to be granted by the Count de Grasse to carry them under flags of truce to New York within ten days from this date, if possible, and they to reside in a district to be agreed upon hereafter, until they embark. The officers of the civil department of the army and navy to be included in this article. Passports to go by land to be granted to those to whom vessels cannot be furnished.
Granted.
Article VII. Officers to be allowed to keep soldiers as servants, according to the common practice of the service. Servants not soldiers are not to be considered as prisoners, and are to be allowed to attend their masters.
Granted.
Article VIII. The Bonetta sloop-of-war to be equipped, and navigated by its present captain and crew, and left en- tirely at the disposal of Lord Cornwallis from the hour that the capitulation is signed, to receive an aid-de-camp to carry^ despatches to Sir Henry Clinton ; and such soldiers as he may think proper to send to New York, to be permitted to sail without examination. When his despatches are ready, his Lordship engages on his part, that the ship shall be delivered to the order of the Count de Grasse, if she escapes the dangers of the sea. That she shall not carry off any public
AMERICAN HISTORICAL DOCUMENTS 183
stores. Any part of the crew that may be deficient on her return, and the soldiers passengers, to be accounted for on her delivery.
Article IX. The traders are to preserve their property, and to be allowed three months to dispose of or remove them ; and those traders are not to be considered as prisoners of war.
The traders will be allowed to dispose of their effects, the allied army having the right of preemption. The traders to be considered as prisoners of war upon parole.
Article X. Natives or inhabitants of different parts of this country, at present in York or Gloucester, are not to be punished on account of having joined the British army.
This article cannot be assented to, being altogether of civil resort.
Article XL Proper hospitals to be furnished for the sick and wounded. They are to be attended by their own surgeons on parole; and they are to be furnished with medicines and stores from the American hospitals.
The hospital stores now at York and Gloucester shall be delivered for the use of the British sick and wounded. Passports will be granted for procuring them further supplies from New York, as occasion may require; and proper hospi- tals will be furnished for the reception of the sick and wounded of the two garrisons.
Article XII. Wagons to be furnished to carry the bag- gage of the officers attending the soldiers, and to surgeons when travelling on account of the sick, attending the hospi- tals at public expense.
They are to be furnished if possible.
Article XIII. The shipping and boats in the two har- bours, with all their stores, guns, tackling, and apparel, shall be delivered up in their present state to an officer of the navy appointed to take possession of them, previously unloading the private property, part of which had been on board for security during the siege.
Granted.
184 AMERICAN HISTORICAL DOCUMENTS
Article XIV. No article of capitulation to be infringed on pretence of reprisals; and if there be any doubtful ex- pressions in it, they are to be interpreted according to the common meaning and acceptation of the words.
Granted.
Done at Yorktown, in Virginia, October 19th, 1781.
cornwallis, Thomas Symonds,
Done in the Trenches before Yorktown, in Virginia, Octo- ber 19th, 178 1.
George Washington,
Le Comte de Rochambeau,
Le Comte de Barras,
En mon nom & celui du Comte de Grasse.
TREATY WITH GREAT BRITAIN
('783)
[Less than five months after the surrender of Cornwallls, the British Parliament passed an act to enable the king to make peace till July 1783. In the end of November, 1782, a provisional treaty was signed, the negotiations on behalf of Congress having been conducted by Benjamin Franklin, John Adams, John Jay, and Henry Laurens. On September 3, 1783, this treaty was made definitive in the form here printed, and the complete independence of the American States acknowledged by Great Britain.]
Definitive Treaty of Peace between the United States OF America and His Britannic Majesty, Concluded at Paris September 3, 1783; Ratified by Congress January 14, 1784; Proclaimed January 14, 1784
IN the name of the Most Holy and Undivided Trinity. It having pleased the Divine Providence to dispose the hearts of the most serene and most potent Prince George the Third, by the Grace of God King of Great Britain, France, and Ireland, Defender of the Faith, Duke of Brunswick and Luneburg, Arch-Treasurer and Prince Elector of the Holy Roman Empire, &c., and of the United States of America, to forget all past misunderstandings and differences that have unhappily interrupted the good corre- spondence and friendship which they mutually wish to restore; and to establish such a beneficial and satisfactory intercourse between the two countries, upon the ground of reciprocal advantages and mutual convenience, as may pro- mote and secure to both perpetual peace and harmony: And having for this desirable end already laid the foundation of peace and reconciliation, by the provisional articles, signed at Paris, on the 30th of Nov., 1782, by the commis- sioners empowered on each part, which articles were agreed to be inserted in and to constitute the treaty of peace pro- posed to be concluded between the Crown of Great Britain
185
186 AMERICAN HISTORICAL DOCUMENTS
and the said United States, but which treaty was not to be concluded until terms of peace should be agreed upon be- tween Great Britain and France, and His Britannic Majesty should be ready to conclude such treaty accordingly ; and the treaty between Great Britain and France having since been concluded. His Britannic Majesty and the United States of America, in order to carry into full effect the provisional articles above mentioned, according to the tenor thereof, have constituted and appointed, that is to say. His Britan- nic Majesty on his part, David Hartley, esqr., member of the Parliament of Great Britain ; and the said United States on their part, John Adams, esqr., late a commissioner of the United States of America at the Court of Versailles, late Delegate in Congress from the State of Massachusetts, and chief justice of the said State, and Minister Plenipo- tentiary of the said United States to their High Mighti- nesses the States General of the United Netherlands; Benjamin Franklin, esq're, late Delegate in Congress from the State of Pennsylvania, president of the convention of the said State, and Minister Plenipotentiary from the United States of America at the Court of Versailles; John Jay, esq're, late president of Congress, and chief justice of the State of New York, and Minister Plenipotentiary from the said United States at the Court of Madrid, to be the Plenipotentiaries for the concluding and signing the present definitive treaty; who,^ after having reciprocally communi- cated their respective full powers, have agreed upon and confirmed the following articles:
Article I
His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; that he treats with them as such, and for himself, his heirs and successors, relin- quishes all claims to the Government, proprietory and terri- torial rights of the same, and every part thereof.
AMERICAN HISTORICAL DOCUMENTS 187
Article II
And that all disputes which might arise in future, on the subject of the boundaries of the said United States may be prevented, it is hereby agreed and declared, that the follow- ing are, and shall be their boundaries, viz : From the north- west angle of Nova Scotia, viz. that angle which is formed by a line drawn due north from the source of Saint Croix River to the Highlands; along the said Highlands which divide those rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost head of Connecticut River; thence down along the middle of that river, to the forth-fifth degree of north latitude; from thence, by a line due west on said latitude, until it strikes the river Iroquois or Cataraquy; thence along the middle of said river into Lake Ontario, through the middle of said lake until it strikes the communi- cation by water between that lake and Lake Erie; thence along the middle of said communication into Lake Erie, through the middle of said lake until it arrives at the water communication between that lake and Lake Huron; thence along the middle of said water communication into the Lake Huron; thence through the middle of said lake to the water communication between that Lake and Lake Superior; thence through Lake Superior northward of the Isles Royal and Phelipeaux, to the Long Lake; thence through the middle of said Long Lake, and the water communication between it and the Lake of the Woods, to the said Lake of the Woods; thence through the said lake to the most north- western point thereof, and from thence on a due west course to the river Mississippi ; thence by a line to be drawn along the middle of the said river Mississippi until it shall inter- sect the northernmost part of the thirty-first degree of north latitude. South, by a line to be drawn due east from the determination of the line last mentioned, in the latitude of thirty-one degrees north of the Equator, to the middle of the river Apalachicola or Catahouche; thence along the middle thereof to its junction with the Flint River; thence straight to the head of St. Mary's River ; and thence down along the middle of St. Mary's River to the Atlantic Ocean.
188 AMERICAN HISTORICAL DOCUMENTS
East,' by a line to be drawn along the middle of the river St. Croix, from its mouth in the Bay of Fundy to its source, and from its source directly north to the aforesaid High- lands, which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence; comprehending all islands within twenty leagues of any part of the shores of the United States, and lying between lines to be drawn due east from the points where the afore- said boundaries between Nova Scotia on the one part, and East Florida on the other, shall respectively touch the Bay of Fundy and the Atlantic Ocean; excepting such islands as now are, or heretofore have been, within the limits of the said province of Nova Scotia.
Article III
It IS agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of New- foundland; also in the Gulph of Saint Lawrence, and at all other places in the sea where the inhabitants of both coun- tries used at any time heretofore to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfound- land as British fishermen shall use (but not to dry or cure the same on that island) and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.
Article IV
It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value
AMERICAN HISTORICAL DOCUMENTS 189
in sterling money, of all bona fide debts heretofore con- tracted.
Article V
It is agreed that the Congress shall earnestly recommend it to the legislatures of the respective States, to provide for the restitution of all estates, rights, and properties which have been confiscated, belonging to real British sub- jects, and also of the estates, rights, and properties of persons resident in districts in the possession of His Maj- esty's arms, and who have not borne arms against the said United States. And that persons of any other description shall have free liberty to go to any part or parts of any of the thirteen United States, and therein to remain twelve months, unmolested in their endeavours to obtain the res- titution of such of their estates, rights, and properties as may have been confiscated; and that Congress shall also earnestly recommend to the several States a reconsideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent, not only with justice and equity, but with that spirit of concilia- tion which, on the return of the blessings of peace, should universally prevail. And that Congress shall also earnestly recommend to the several States, that the estates, rights, and properties of such last mentioned persons, shall be restored to them, they refunding to any persons who may be now in possession, the bona fide price (where any has been given) which such persons may have paid on purchas- ing any of the said lands, rights, or properties, since the confiscation. And it is agreed, that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impedi- ment in the prosecution of their just rights.
Article VI
That there shall be no future confiscations made, nor any prosecutions commenced against any person or persons for, or by reason of the part which he or they may have taken in the present war ; and that no person shall, on that account.
190 AMERICAN HISTORICAL DOCUMENTS
suffer any future loss or damage, either in his person, liberty, or property; and that those who may be in confinement on such charges, at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prose- cutions so commenced be discontinued.
Articxe VII
There shall be a firm and perpetual peace between His \ Britannic Majesty and the said States, and between the subjects of the one and the citizens of the other, wherefore all hostilities, both by sea and land, shall from henceforth cease: All prisoners on both s'.des shall be set at liberty, and His Britannic Majesty shall, with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets from the said United States, and from every port, place, and harbour within the same; leaving in all fortifications the American artillery that may be therein : And shall also order and cause all archives, records, deeds, and papers, belonging to any of the said States, or their citizens, which, in the course of the war, niay have fallen into the hands of his officers, to be forthwith restored and delivered to the proper States and persons to whom they belong.
Article VIII
The navigation of the river Mississippi, from its source to the ocean, shall forever remain free and open to the sub- jects of Great Britain, and the citizens of the United States.
Article IX
In case it should so happen that any place or territory belonging to Great Britain or to the United States, should have been conquered by the arms of either from the other, before the arrival of the said provisional articles in Amer- ica, it is agreed, that the same shall be restored without difficulty, and without requiring any compensation.
AMERICAN HISTORICAL DOCUMENTS 191
Article X
The solemn ratifications of the present treaty, expedited in good and due form, shall be exchanged between the con- tracting parties, in the space of six months, or sooner if possible, to be computed from the day of the signature of the present treaty. In witness whereof, we the undersigned, their Ministers Plenipotentiary, have in their name and in virtue of our full powers, signed with our hands the present definitive treaty, and caused the seals of our arms to be affixed thereto.
Done at Paris, this third day of September, in the year of our Lord one thousand seven hundred and eighty-three.
D. Hartley [l. s.]
John Adams [l. s.]
B. Franklin [l. s.]
John Jay [i^s.]
CONSTITUTION
OF THE UNITED STATES
(1787)
[On May 25, 1787, fifty-five delegates from the various States met in Philadelphia to discuss the drawing up of a Constitution to take the place of the Articles of Confederation. Washington presided; and, after a long struggle and many compromises, the resultant document was referred to the several States on September 28 of the same year. By June 21, 1789, the required nine out of the thirteen States had ratified it, and the new federal government was estab- lished at New York on April 30, 1789. The dates of the amendments are as follows: I — ^X, Nov. 3, 1791 ; XI, Jan. 8, 1798; XII, Sept. 25, 1804; XIII, Feb. I, 186s; XIV, July 28, 1868; XV, March 30, 1870.]
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Article I
SECTION I All legislative Powers herein granted shdll be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2 (i) The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
(2) No person shall be a Representative who shall not have attained to the Age of Twenty-five years, and been seven Years a Citizen of the United States, and who shall
192
AMERICAN HISTORICAL DOCUMENTS 193
not, when elected, be an inhabitant of that State in which he shall be chosen.
(3) Representatives and direct Taxes shall be appor- tioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meet- ing of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five. New York six, New Jersey four, Pennsylvania eight, Dela- ware one, Maryland six, Virginia ten. North Carolina five. South Carolina five, and Georgia three.
(4) When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
(5) The House of Representatives shall chuse their Speaker and other Officers ; and shall have the sole Power of Impeachment.
Section 3 (i) The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
(2) Immediately after they shall be assembled in Conse- quence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or other- wise, during the Recess of the Legislature of any State,
HC XLUl (7>
194 AMERICAN HISTORICAL DOCUMENTS
the Executive thereof may make temporary Appointments until the next meeting of the Legislature, which shall then fill such Vacancies.
(3) No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
(4) The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
(5) The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice Presi- dent, or when he shall exercise the Office of President of the United States.
(6) The Senate shall have the sole Power to try all Im- peachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Per- son shall be convicted without the Concurrence of two thirds of the Members present.
(7) Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor. Trust or Profit under the United States: but the Party convicted shall neverthe- less be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section 4 (i) The Times, Places and Manner of hold- ing Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
(2) The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Section 5 (i) Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Bus- iness; but a smaller Number may adjourn from day to day.
AMERICAN HISTORICAL DOCUMENTS 195
and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
(2) Each House may determine the Rules of its Proceed^ ings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.
(3) Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal.
(4) Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Section 6 (i) The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during Jheir Attend- ance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
(2) No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Section 7 (i) All Bills for raising Revenue shall origi- nate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
(2) Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have
196 AMERICAN HISTORICAL DOCUMENTS
originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Recon- sideration two thirJs of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
(3) Every Order, Resolution, or Vote to which the Con- currence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, accord- ing to the Rules and Limitations prescribed in the Case of a Bill.
Section 8 (i) The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States ;
(2) To borrow money on the Credit of the United States ;
(3) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
(4) To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
(5) To coin Money, regulate the Value thereof, and of foreign Coin, and to fix the Standard of Weights and Measures ;
AMERICAN HISTORICAL DOCUMENTS 197
(6) To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
(7) To establish Post Offices and post Roads;
(8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Invent- ors the exclusive Right to their respective Writings and Discoveries ;
(9) To constitute Tribunals inferior to the Supreme Court ;
(10) To define and Punish Piracies and Felonies com- mitted on the high Seas, and Offences against the Law of Nations ;
(11) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
(12) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ;
(13) To provide and maintain a Navy;
(14) To make Rules for the Government and Regula- tion of the land and naval Forces;
(15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ;
(16) To provide for organizing, arming, and disciplin- ing, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia ac- cording to the discipline prescribed by Congress ;
(17) To exercise exclusive Legislation in all Cases what- soever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful Build- ings ; — And
(i8) To make all Laws which shall be necessary and
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proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Section 9 (i) The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceed- ing ten dollars for each Person.
(2) The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.
(3) No Bill of Attainder or ex post facto Law shall be passed.
(4) No Capitation, or other direct, tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
(5) No Tax or Duty shall be laid on Articles exported from any State.
(6) No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
(7) No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expen- ditures of all public Money shall be published from time to time.
(8) No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Con- gress, accept of any present. Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Section 10 (i) No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
AMERICAN HISTORICAL DOCUMENTS £99
Law impairing the Obligation of Contracts, or grant any Title of Nobility.
(2) No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspec- tion Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and controul of the Congress.
(3) No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of Delay^
Asncu It
Section i (i) The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
(2) Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The electors shall meet in their respective States, and vote by ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each ; which List they shall sign and certify, and transmit sealed to the Seat of Govern- ment of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the
200 AMERICAN HISTORICAL DOCUMENTS
Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice, hi every Case, after the Choice of the President, the person h iving the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall chuse from them by Ballot the Vice-President.
(3) The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes.; which Day shall be the same throughout the United States.
(4) No Person except a natural born Citizen, or a Citi- zen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
(5) In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law pro- vide for the Case of Removal, Death, Resignation, or In- ability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
(6) The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased
AMERICAN HISTORICAL DOCUMENTS 201
nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
(7} Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation : — " I do sol- emnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Con- stitution of the United States." I Section 2 (i) The President shall be Commander in
^ Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into actual Service of the United States; he mr.y require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
(2) He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he .chall nominate, and by and with the Advice and Consent of the Senate, shall ap- point Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law : but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
(3) The President shall have power to fill up all Vacan- cies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3 He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge neces- sary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Dis- agreement between them, with Respect to the Time of
202 AMERICAN HISTORICAL DOCUMENTS
Adjournment, he may adjourn them to such Time as he shall think proper ; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faitTifully executed, and shall Commission all the Officers of the United States.
Section 4 The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of. Treason, Bribery, or other high Crimes and Misdemeanors.
Article III
Section i The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section 2 (i) The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — ^to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — ^to Contro- versies to which the United States shall be a party ; — to Con- troversies between two or more States; — ^between a State and Citizens of another State; — between Citizens of differ- ent States, — ^between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or subjects.
(2) In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
(3) The Trial of all Crimes, except in Cases of Impeach-
AMERICAN HISTORICAL DOCUMENTS 203
ment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3 (i) Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
(2) The Congress shall have Power to declare the Punish- ment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Articxe IV
Section i Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2 (i) The Citizens of each State shall be en- titled to all Privileges and Immunities of Citizens in the several States.
(2) A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.
(3) No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be dis- charged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such service or Labour may be due.
Section 3 (i) New States may be admitted by the Con- gress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any
204 AMERICAN HISTORICAL DOCUMENTS
State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
(2) The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any par- ticular State.
Section 4 The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Appli- cation of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Consti- tution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article VI
(i) All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
(2) This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties
AMERICAN HISTORICAL DOCUMENTS 205
made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary nothwithstanding.
(3) The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution ; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article VII
The Ratification of the Conventions of nine States, shall ^; be sufficient for the Establishment of this Constitution be- tween the States so ratifying the Same.
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. 3ln Witntaa whereof We have hereunto subscribed our Names,
Go. Washington Presidt. and Deputy from Virginia,
New Hampshire John Langdon Nicholas Gilman
Massachiisetts Nathaniel Gorham Rufus King
Connecticut Wm. Saml. Johnson Roger Sherman
New York
Alexander Hamilton
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AMERICAN HISTORICAL DOCUMENTS
WiL: Livingston David Brearley
B. Franklin Thomas Mifflin RoBT. Morris Geo. Clymer
New Jersey
Wm. Patterson Jona: Dayton
Pennsylvania
Thos. Fitzsimons Jared Ingersoll James Wilson Gouv. Morris
Delaware Geo. Read Richard Bassett
Gunning Bedford, Jun Jaco: Broom
John Dickinson
Maryland James McHenry Danl. Carroll
Dan of St. Thos. Jenifer
John Blair
Virginia
James Madison, Jr
North Carolina Wm. Blount Hu. Williamson
RiCHD DOBBS SpAIGHT
South Carolina
J. Rutledge Charles Pinckney
Charles Cotesv^torth Pierce Butler Pinckney.
Georgia
William Few Abr. Baldwin
Attest William Jackson Secretary
AMENDMENTS
Articles in Addition to, and Amendment of, the Constitu- tion of the United States of America, Proposed by Con- gress, and Ratified by the Legislatures of the Several States Pursuant to the Fifth Article of the Original Constitution.
AMERICAN HISTORICAL DOCUMENTS 207
Article I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article IL
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Article III
No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Article IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirma- tion, and particularly describing the place to be searched, and the persons or things to be seized.
Article V
No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising^ in the land or naval forces, or in the Militia, when in actual service in time of War or in public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
208 AMERICAN HISTORICAL DOCUMENTS
property be taken for public use, without just compensa- tion.
Article VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.
Article VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than accord- ing to the rules of the common law.
Article VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Article IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
AMERICAN HISTORICAL DOCUMENTS 209
Article XI
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Article XII
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors ap- pointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state hav- ing one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-
210 AMERICAN HISTORICAL DOCUMENTS
President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-Presi- dent; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Article XIII
Section i Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2 Congress shall have power to enforce this article by appropriate legislation.
Article Xiy
Section i All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protection of the laws.
Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, exclud- ing Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice- President of the United States, Representatives in Con- gress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such States, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other
AMERICAN HISTORICAL DOCUMENTS 211
crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3 No person shall be a Senator or Representa- tive in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for pay- ment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obli- gations and claims shall be held illegal and void.
Section 5 The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Article XV
Section i The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous con- dition of servitude.
Section 2 The Congress shall have power to enforce this article by appropriate legislation.
THE FEDERALIST
NOS. I AND II (â– 787)
[In the interval between the drawing up of the Constitution and its ratification, there appeared in The Independent Journal and other New York newspapers a series of eighty-five articles under the general heading of The Federalist, devoted to expounding and de- fending the new instrument of government. Most of the articles were written by Hamilton, some twenty-nine by Madison (whose work the Constitution largely was), and five by Jay. Together they form one of the great classics on government ; and they exercised a highly important influence in favor of the adoption of the Con- stitution.]
FOR THE INDEPENDENT JOURNAL
THE FCEDERALIST, NO. I BY ALEXANDER HAMILTON
To THE People of the State of New York:
A FTER an unequivocal experience of the inefficacy of /\ the subsisting Fcederal Government, you are called -^ â– upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance ; comprehending in its consequences, nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire, in many respects, the most interesting in the world. It has been frequently remarked, that it seems to have been re- served to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good gov- ernment from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the aera in which that decision is to be made; and a wrong election of the part we shall act, may, in this
^12
AMERICAN HISTORICAL DOCUMENTS 213
view, deserve to be considered as the general misfortune of mankind.
This idea will add the inducements of philanthropy to those of patriotism to heighten the solicitude, which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished, than seriously to be expected. The plan offered to our deliberations, affects too many par- ticular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.
Among the most formidable of the obstacles which the new Constitution will have to encounter, may readily be dis- tinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument and consequence of the offices they hold under the State-establishments — and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusion of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies, than from its union under one Gov- ernment.
It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be dis- ingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views: Candor will oblige us to admit, that even such men may be actuated by upright intentions; and it cannot be doubted, that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable; the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes, which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong
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as well as on the right side of questions, of the first magni- tude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those, who are ever so much persuaded of their being in the right, in any contro- versy. And a further reason for caution, in this respect, might be drawn from the reflection, that we are not always sure, that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other mo- tives, not more laudable than these, are apt to operate as well upon those who support, as upon those who oppose, the right side of a question. Were there not even these induce- ments to moderation, nothing could be more ill-judged than that intolerant spirit, which has, at all times, characterized political parties. For, in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
And yet however just these sentiments will be allowed to be, we have already sufficient indications, that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude, that they will mutually hope to evince the justness of their opinions, and to injcrease the number of their converts by the loudness of their declamations, and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized, as the offspring of a temper fond of despotic power, and hostile to the principles of liberty. An over scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretence and artifice; the stale bait for popularity at the expense of public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of violent love, and that the noble enthusiasm of liberty is too apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten, that the vigor of Government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated ; and that a dangerous
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ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding ap- pearance of zeal for the firmness and efficiency of Govern- ment. History will teach us, that the former has been found a much more certain road to the introduction of despotism, than the latter; and that of those men who have overturned the liberties of republics the greatest number have begun their career, by paying an obsequious court to the people; commencing Demagogues, and ending Tyrants.
In the course of the preceding observations I have had an eye, my Fellow-Citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare by any impressions other than those which may re- sult from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them that they proceed from a source not unfriendly to the new Constitution. Yes, my Countrymen, I owe to you, that, after having given it an attentive consideration, I am clearly of opinion, it is your interest to adopt it. I am convinced, that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves, which I do not feel. I will not amuse you with an appearance of delibera- tion, when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good inten- tions disdains ambiguity. I shall not however multiply pro- fessions on this head. My motives must remain in the de- pository of my own breast: My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.
I propose, in a series of papers, to discuss the following interesting particulars. — The utility of the UNION to your political prosperity — The insufficiency of the present Con- federation to preserve that Union — The necessity of a Gov- ernment at least equally energetic with the one proposed, to the attainment of this object — The conformity of the pro- posed Constitution to the true principles of republican Gov- ernment— Its analogy to your own state constitution — and lastly. The additional security which its adoption will afford
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to the preservation of that species of Government, to liberty, and to property.
In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention.
It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whis- pered in the private circles of those who oppose the new Constitution, that the Thirteen States are of too great ex- tent for any general system, and that we must of necessity, resort to separate â– confederacies of distinct portions of the whole.* This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avnwal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will, therefore, be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.
PUBLIUS.
FOR THE INDEPENDENT JOURNAL
THE FCEDERALIST, NO. II
BY JOHN JAY
To THE People of the State of New York:
When the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important, that ever engaged their attention, the propriety of their taking a very compre- hensive, as well as a very serious, view of it, will be evident. Nothing is more certain than the indispensable necessity
^ The same idea, tracing the argUTnents to their consequences, is held out in several of the late publications against the new Constitution. — Publius.
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of Government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers. It is well worthy of consideration, therefore, whether it would conduce more to the interest of the people of America, that they should, to all general purposes, be one nation, under one Foederal Government, or that they should divide themselves into separate confederacies, and give to the head of each, the same kind of powers which they are advised to place in one national Government.
It has until lately been a received and uncontradicted opinion, that the prosperity of the people of America de- pended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest Citizens have been constantly directed to that object. But Politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it for- merly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these Gentlemen, it cer- tainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound Policy.
It has often given me pleasure to observe, that Inde- pendent America was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions and watered it with innum- erable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy com- munication of friendly aids, and the mutual transportation and exchange of their various commodities.
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With equal pleasure I have as often taken notice, that Providence has been pleased to give this one connected country, to one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of govern- ment, very similar in their manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly estab- lished their general Liberty and Independence.
This country and this people seem to have been made for each other, and it appears as if it was the design of Provi- dence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jeal- ous, and alien sovereignties.
Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people ; each individual citizen everywhere enjoying the same national rights, priv- ileges, and protection. As a nation we have made peace and war: as a nation we have vanquished our common enemies: as a nation \V6 have formed alliances and made treaties, and entered into various compacts and conventions with foreign States.
A strong sense of the value and blessings of Union in- duced the people, at a very early period, to institute a Foederal Government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time, when their habitations were in flames, when many of their Citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections, which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a Govern- ment instituted in times so inauspicious, should on experi- ment be found greatly deficient and inadequate to the pur- pose it was intended to answer.
This intelligent people perceived and regretted these de- fects. Still continuing no less attached to Union, than enamored of Liberty, they observed the danger, which imme-
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diately threatened the former and more remotely the latter; and being persuaded that ample security for both, could only be found in a national Government more wisely framed, they, as with one voice, convened the late Convention at Philadelphia, to take that important subject under considera- tion.
This Convention, composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue, and wis- dom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultations; and finally, without having been awed by power, or influenced by any passions except love for their Country, they pre- sented and recommended to the people the plan produced by their joint and very unanimous councils.
Admit, for so is the fact, that this plan is only recom- mended, not imposed, yet let it be. remembered, that it is neither recommended to blind approbation, nor to blind rep- robation; but to that sedate and candid consideration, which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this, (as was re- marked in the foregoing number of this Paper,) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten, that well grounded apprehensions of imminent danger in- duced the people of America to form the Memorable Con- gress of 1774. That Body recommended certain measures to their Constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the Press began to teem with Pamphlets and weekly Papers against those very measures. Not only many of the Officers of Govern- ment, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their endeavors to persuade the people to reject the advice of that Patriotic Congress. Many
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indeed were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so.
They considered that the Congress was composed of many wise and experienced men. That being convened from different parts of the country they brought with them and communicated to each other a variety of useful informa- tion. That in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty, to recommend only such measures as after the most mature deliberation they really thought prudent and advisable.
These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Con- gress; and they took their advice, notwithstanding the various arts and endeavors used to deter and dissuade them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had then been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the Convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this Convention, and carried into it their ac- cumulated knowledge and experience.
It is worthy of remark, that not only the first, but every succeeding Congress, as well as the late Convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it, was the great object of the people in forming that Convention, and it is also the great object of the plan which the Convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period, made by some men, to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would
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be better than one? I am persuaded in my own mind, that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall en- deavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the Convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy: that certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good Citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim in the words of the Poet, "Farewell! a long Farewell, to all my Greatness."
PUBLIUS.
OPINION OF
CHIEF JUSTICE MARSHALL
IN THE CASE OF McCULLOCH VS.
THE STATE OF MARYLAND
(1819)
[John Marshall (1755-1835), third Chief Justice of the Supreme Court of the United States, and the greatest of American judges, laid down in the following opinion certain principles which have come to be accepted as fundamental in all questions touching the respective powers of the Federal government and the State legis- latures. In 1 81 6, Congress had incorporated the Bank of the United States; and in 1818, the legislature of Maryland had passed a law taxing " all Banks, or branches thereof, in the State of Maryland, not chartered by the legislature." The purpose of this law was to prevent the United States Bank from doing business in the State. McCulloch, the Cashier of the Baltimore branch, refused to pay the tax, was sued in the state courts, and lost. The case was appealed to the United States Supreme Court, where the Maryland decision was unanimously reversed. Chief Justice Marshall, in writing the opinion of the court, is regarded as having established certain principles on which depend " the stability of our peculiar dual system of national and local governments."]
MR. Chief Justice Marshall delivered the opinion of the Court. In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be con- sidered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may es- sentially influence the great operations of the government.
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No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility in- volved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty.
The first question made in the cause is, has Congress power to incorporate a bank?
It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.
It will not be denied that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representa- tives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a consider- able impression from that practice. An exposition of the ronstitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.
The power now contested was exercised by the first Con- gress elected under the present constitution. The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country
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can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, con- vinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance.
These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the consti- tution.
In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the con- struction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general gov- ernment, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in sub- ordination to the States, who alone possess supreme dominion.
It would be difficult to sustain this proposition. The Con- vention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might "be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the recommenda- tion of its Legislature, for their assent and ratification." This mode of proceeding was adopted; and by the Conven- tion, by Congress, and by the State Legislatures, the in- strument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Conven- tion. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the
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American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.
From these Conventions the constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established" in the name of the people ; and is declared to be ordained, " in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to them- selves and to their posterity." The assent of the States, in their sovereign capacity, is implied in calling a Con- vention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obliga- tion, and bound the State sovereignties.
It has been said, that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the State sovereignties were certainly com- petent. But when, " in order to form a more perfect union," it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all.
The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in sub- stance it emanates from them. Its powers are granted by
HC XLIU (8)
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them, and are to be exercised directly on them, and for their benefit.
This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.
In discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.
If any one proposition could command the universal as- sent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this ques- tion is not left to mere reason: the people have, in express terms, decided it, by saying, " this constitution, and the laws of the United States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it.
The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pur- suance of the constitution, form the supreme law of the land, " any thing in the constitution or laws of any State to the contrary notwithstanding."
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of con-
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federation, excludes incidental or implied powers ; and which requires that every thing granted shall be expressly and minutely described. Even the loth amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word " expressly," and de- clares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people ;" thus leaving the question, whether the par- ticular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instru- ment. The men who drew and adopted this amendment had experienced the embarrassments resulting from the inser- tion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A con- stitution, to contain an accurate detail of all the subdivi- sions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of the legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, re- quires, that only its great outlines should be marked, its im- portant objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be in- ferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the ist article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is o constitution we are expound- ing.
Although, among the enumerated powers of government, we do not find the word " bank " or " incorporation," we find the great powers to lay and collect taxes ; to borrow money ; to regulate commerce ; to declare and conduct a war ; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable por-
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tion of the industry of the nation, are entrusted to its gov- ernment. It can never be pretended that these vast powers draw after them others of inferior importance, merely be- cause they are inferior. Such an idea can never be advanced. But 3t may with great reason be contended, that a govern- ment, entrusted with such ample powers, on the due execu- tion of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withhold- ing the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulph of Mexico, from the Atlantic to the Pacific, revenue is to be collected and ex- pended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction, (unless the words imperiously require it,) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the -constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed ; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exer- cise of those powers. It is then, the subject of fair inquiry, how far such means may be employed.
It is not denied that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means; or, that
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it may employ the most convenient means; if, to employ them, it be necessary to erect a corporation.
On what foundation does this argument rest? On this alone: The power of creating a corporation, is one apper- taining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative powers apper- tain to sovereignty. The original power of giving the law on any subject whatsoever, is a sovereign power; and if the government of the Union is restrained from creating 4 corporation, as a means for performing its functions, on the single reason that the creation of a corporation is an act of sovereignty; if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority of Congress to pass other laws for the ac- complishment of the same objects.
The government which has a right to do an act, and has imposed on it the duty of performing that act, must, accord- ing to the dictates of reason, be allowed to select the means ; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.
The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. We cannot compre- hend that train of reasoning which would maintain, that the extent of power granted by the people is to be ascer- tained, not by the nature and terms of the grant, but by its date. Some State constitutions were formed before, some since that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government
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the power contained in the constitution, and on the States the whole residuum of power, would it have been asserted that the government of the Union was not sovereign with respect to those objects which were entrusted to it, in rela- tion to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which maintains, that a power ap- pertaining to sovereignty cannot be connected with the vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation IS created to administer the charity; no seminary of learn- ing is instituted in order to be incorporated, but the cor- porate character is conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them.
But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making **all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof."
The counsel for the State of Maryland have urged various
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arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of select- ing means for executing the enumerated powers.
In support of this proposition, they have found it necessary to contend, that this clause was inserted for the purpose of conferring on Congress the power of making laws. That, without it, doubts might be entertained, whether Congress could exercise its powers in the form of legislation.
But could this be the object for which it was inserted? A government is created by the people, having legislative, executive, and judicial powers. Its legislative powers are vested in a Congress, which is to consist of a Senate and House of Representatives. Each house may determine the rule of its proceedings; and it is declared that every bill which shall have passed both houses, shall, before it becomes a law, be presented to the President of the United States. The 7th section describes the course of proceedings, by which a bill shall become a law; and, then, the 8th section enumerates the powers of Congress. Could it be necessary to say, that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single mem- ber of the Convention, that an express power to make laws was necessary to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned.
But the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the government, but such only as may be "necessary and proper'' for carrying them into execution. The word '* necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means^ and leaves
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to Congress in each case, that only which is most direct arid simple.
Is it true, that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist with- out that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is gen- erally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattain- able. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense — in that sense which common usage justifies. The word "necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be neces- sary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. This comment on the word is well illus- trated, by the passage cited at the bar, from the loth section of the 1st article of the constitution. It is, we think, im- possible to 'compare the sentence which prohibits a State from laying "imposts, or duties on imports or exports, ex- cept what may be absolutely necessary for executing its inspection laws," with that which authorizes Congress "to make all laws which shall be necessary and proper for car- rying into execution" the powers of the general government, without feeling a conviction that the convention understood
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itself to change materially the meaning of the word "necessary," by prefixing the word "absolutely." This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.
Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their bene* ficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appro- priate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty, is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the Con-
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vention was not unmindful of this subject. The oath which might be exacted — ^that of fidelity to the constitution — is prescribed, and no other can be required. Yet, he would be charged with insanity who should contend, that the legisla- ture might not superadd, to the oath directed by the con- stitution such other oath of office as its wisdom might suggest.
So, with respect to the whole penal code of the United States: whence arises the power to punish in cases not pre- scribed by the constitution? All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, be- cause it is expressly given in some cases. Congress is em- powered **to provide for the punishment of counterfeiting the securities and current coin of the United States," and "define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The several powers of Congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given.
Take, for example, the power **to establish post offices and post roads." This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post road, from one post office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that the^ right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the bene- ficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administra- tion of justice. But courts may exist, and may decide the
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causes brought before them, though such crimes escape pun- ishment.
The baneful influence of this narrow construction on all the operations of the government, and the absolute im- practicability of maintaining it without rendering the gov- ernment incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably neces- sary. It is a right incidental to the power, and conducive to its beneficial exercise.
If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive to their nature? If the word "necessary" means "needful,** " requisite," " essential," " conducive to," in order to let in the power of punishment for the infraction of law; why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the pow- ers of government without the infliction of punishment?
In ascertaining the sense in which the word "necessary** is used in this clause of the constitution, we may derive some aid from that with which it is associated. Congress shall have power " to make all laws which shall be necessary and proper to carry into execution" the powers of the govern- ment. If the word " necessary" was used in that strict and rigorous sense for which the counsel for the State of Mary- land contend, it would be an extraordinary departure from the usual course of the human mind, as exhibited in com- position, to add a word, the only possible effect of which is to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation not straitened and compressed within the narrow limits for which gentlemen contend.
But the argument which most conclusively demonstrates
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the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Con- gress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause. Congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the State of Maryland, would abridge, and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be in- tended, is, we should think, had it not been already contro- verted, too apparent for controversy. We think so for the following reasons:
1st. The clause is placed among the powers of Congress, not among the limitations on those powers.
2nd. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned for thus concealing an intention to narrow the discretion of the national legis- lature under words which purport to enlarge it. The f ramers of the constitution wished its adoption, and well know that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would con- vey to the eye one idea, and after deep reflection, impress on the mind another, they would rather have disguised the grant of power, than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. "In carrying into execution the foregoing powers, and all others," &c. "no laws shall be passed but, such as are necessary and proper." Had the intention been to make this clause
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restrictive, it would unquestionably have been so in form as well as in effect.
The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execu- tion the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instru- ment be not a splendid bauble.
We admit, as all must admit, that the powers of the gov- ernment are limited, and that its limits are not to be tran- scended. But we think the sound construction of the con- stitution must allow to the national legislature that discre- tion, with respect to the means by which the powers it con- fers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the man- ner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means, has been sufficient- ly proved. If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in government, ought to have specified this. Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed
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only for the purpose of carrying into execution the given powers, there could be no motive for particularly mention- ing it.
The propriety of this remark would seem to be generally acknowledged by the universal acquiescence in the construc- tion which has been imiformly put on the 3rd section of the 4th article of the constitution. The power to "make all needful rules and regulations respecting the territory or other property belonging to the United States," is not more com- prehensive, than the power "to make all laws which shall be necessary and proper for carrying into execution" the powers of the government Yet all admit the constitution- ality of a territorial government, which is a corporate body. If a corporation may be employed indiscriminately with other means to carry into execution the powers of the gov- * ernment, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of Congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a sub- ject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions against it had been confirmed by every cir- cumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, Congress, justifying the measure by its ne- cessity, transcended perhaps its powers to obtain the ad- vantage of a bank; and our own legislation attests the uni- versal conviction of the utility of this measure. The time has passed away when it can be necessary to enter into any discussion in order to prove the importance of this instrument, as a means to effect the legitimate objects of the government.
But, were its necessity less apparent, none can deny its being an appropriate measure ; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its
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powers, adopt measures which are prohibited by the constitu- tion; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circum- scribes the judicial department, and to tread on legisla- tive ground. This court disclaims all pretensions to such a power.
After this declaration, it can scarcely be necessary to say, that the existence of State banks can have no possible in- fluence on the question. No trace is to be found in the consti- tution of an intention to create a dependence of the govern- ment of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends ; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the ne- cessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution. But were it other- wise, the choice of means implies a right to choose a national bank in preference to State banks, and Congress alone can make the election.
After the most deliberate consideration, it is the unan- imous and decided opinion of this Court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land.
The branches, proceeding from the same stock, and being conducive to the complete accomplishment of the object, are equally constitutional. It would have been unwise to locate them in the charter, and it would be unnecessarily inconven- ient to employ the legislative power in making those subor-
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dinate arrangements. The great duties of the bank are pre- scribed, those duties require branches; and the bank itself may, we think, be safely trusted with the selection of places where those branches shall be fixed; reserving always to the government the right to require that a branch shall be located where it may be deemed necessary.
WASHINGTON'S FIRST INAUGURAL ADDRESS
(1789)
[At the first election held under the Constitution, George Wash- ington, who had been chairman of the convention which framed the Constitution, was unanimously chosen President. The inaugural address was delivered in Federal Hall, at Wall and Nassau Streets New York, April 30, 1789.]
Fellow-Citizens :
A MONO the vicissitudes incident to life, no event could Z\ have filled me with greater anxieties, than that of ^ JL which the notification was transmitted by your order, and received on the 14th day of the present month. On the one hand, I was summoned by my country, whose voice I can never hear but with veneration and love, from a retreat which I had chosen with the fondest predilection, and, in my flattering hopes, with an immutable decision, as the asylum of my declining years; a retreat which was ren- dered every day more necessary as well as more dear to me, by the addition of habit to inclination, and of frequent interruptions in my health to the gradual waste committed on it by time. On the other hand, the magnitude and diffi- culty of the trust, to which the voice of my country called me, being sufficient to awaken in the wisest and most ex- perienced of her citizens a distrustful scrutiny into his qualifications, could not but overwhelm with despondence one, who, inheriting inferior endowments from nature, and unpracticed in the duties of civil administration, ought to be peculiarly conscious of his own deficiencies. In this conflict of emotions, all I dare aver is, that it has been my faithful study to collect my duty from a just appreciation of every circumstance by which it might be affected. All
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I dare hope is, that, if in executing this task, I have been too much swayed by a grateful remembrance of former in- stances, or by an affectionate sensibility to this transcen- dent proof of the confidence of my fellow-citizens; and have thence too little consulted my incapacity as well as disinclination for the weighty and untried cares before me ; my error will be palliated by the motives which misled me', and its consequences be judged by my country with some share of the partiality in which they originated.
Such being the impressions under which I have, in obedi- ence to the public summons, repaired to the present station, it would be peculiarly improper to omit, in this first official act, my fervent supplications to that Almighty Being, who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the people of the United States a govern- ment instituted by themselves for these essential purposes, and may enable every instrument employed in its administra- tion to execute with success the functions allotted to his charge. In tendering this homage to the great Author of every public and private good, I assure myself that it ex- presses your sentiments not less than my own; nor those of my fellow-citizens at large, less than either. No people can be bound to acknowledge and adore the invisible hand, which conducts the affairs of men, more than the people of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency. And, in the important revolution just accomplished in the system of their united government, the tranquil deliberations and voluntary consent of so many distinct communities, from which the event has resulted, cannot be compared with the means by which most governments have been established, without some return of pious gratitude along with an humble anticipation of the future blessings which the past seems to presage. These reflections, arising out of the present crisis, have forced themselves too strongly on my mind to be suppressed. You will join with me, I trust, in thinking that there are none, under the influence of which the proceed-
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ings of a new and free government can more auspiciously commence.
By the article establishing the executive department, it is made the duty of the President "to recommend to your consideration such measures as he shall judge necessary and expedient." The circumstances, under which I now meet you, will acquit me from entering into that subject farther than to refer you to the great constitutional charter under which we are assembled; and which, in defining your powers, designates the objects to which your attention is to be given. It will be more consistent with those circum- stances, and far more congenial with the feelings which actuate me, to substitute, in place of a recommendation of particular measures, the tribute that is due to the talents, the rectitude, and the patriotism, which adorn the char- acters selected to devise and adopt them. In these honor- able qualifications I behold the surest pledges, that as, on one side, no local prejudices or attachments, no sepa- rate views or party animosities, will misdirect the compre- hensive and equal eye, which ought to watch over this great assemblage of communities and interests; so, on an- other, that the foundations of our national policy will be laid in the pure and immutable principles of private morality, and the preeminence of a free government be exemplified by all the attributes, which can win the af- fections of its citizens, and command the respect of the world.
I dwell on this prospect with every satisfaction, which an ardent love for my country can inspire; since there is no truth more thoroughly established, than that there exists in the economy and course of nature an indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and fel- icity; since we ought to be no less persuaded that the pro- pitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained; and since the preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered as deeply, per-
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haps as finally staked on the experiment intrusted to the hands of the American people.
Besides the ordinary objects submitted to your care, it will remain with your judgment to decide, how far an exercise of the occasional power delegated by the fifth article of the Constitution is rendered expedient at the present juncture by the nature of objections which have been urged against the system, or by the degree of inquietude which has given birth to them. Instead of undertaking particular recom- mendations on this subject, in which I could be guided by no lights derived from official opportunities, I shall again give way to my entire confidence in your discernment and pursuit of the public good; for I assure myself, that, whilst you carefully avoid every alteration, which might endanger the benefits of a united and effective government, or which ought to await the future lessons of experience, a reverence for the characteristic rights of freemen, and a regard for the public harmony, will sufficiently influence your delibera- tions on the question, how far the former can be more impregnably fortified, or the latter be safely and advanta- geously promoted.
To the preceding observations I have one to add, which will be most properly addressed to the House of Repre- sentatives. It concerns myself, and will therefore be as brief as possible. When I was first honored with a call into the service of my country, then on the eve of an ardu- ous struggle for its liberties, the light in which I contem- plated my duty required, that I should renounce every pecuniary compensation. From this resolution I have in no instance departed. And being still under the impres- sions which produced it, I must decline as inapplicable to myself any share in the personal emoluments, which may be indispensably included in a permanent provision for the executive department; and must accordingly pray, that the pecuniary estimates for the station in which I am placed may, during my continuance in it, be limited to such actual expenditures as the public good may be thought to require.
Having thus imparted to you my sentiments, as they have been awakened by the occasion which brings us together, I shall tak'^ my present leave; but not without resorting
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once more to the benign Parent of the human race, in humble supplication, that, since he has been pleased to favor the American people with opportunities for deliberat- ing in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness; so his divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures, on which the success of this government must depend.
TREATY WITH THE SIX NATIONS
("794)
[The confederation of Indian tribes known as the Iroquois, or Six Nations, included the Mohawks, the Oneidas, the Onondagas, the Cayugas, the Senecas, and the Tuscaroras. This treaty, concluded November ii, i794> fixed the limits of the territory to be left in the possession of these tribes, who had fought against the colonies in the War of Independence.]
THE President of the United States having determined to hold a conference with the Six Nations of Indians, for the purpose of removing from their minds all causes of complaint, and establishing a firm and permanent friendship with them; and Timothy Pickering being ap- pointed sole agent for that purpose; and the agent having met and conferred with the Sachems, Chiefs and Warriors of the Six Nations, in a general council: Now in order to accomplish the good design of this conference, the parties have agreed on the following articles, which, when ratified by the President, with the advice and consent of the Senate of the United States, shall be binding on them and the Six Nations.
Article I
Peace and friendship are hereby firmly established, and shall be perpetual, between the United States and the Six Nations.
Article II
The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reserva- tions, to be their property ; and the United States will never
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claim the same, nor disturb them or either of the Six Na- tions, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States who have right to purchase.
Article III
The land of the Seneka nation is bounded as follows: Beginning on Lake Ontario, at the north-west corner of the land they sold to Oliver Phelps, the line run westerly along the lake, as far as 0-yong-wong-yeh Creek at Johnson's Landing-place, about four miles eastward from the fort of Niagara; then southerly up that creek to its main fork, then straight to the main fork of Stedman's Creek, which empties into the river Niagara, above Fort Schlosser, and then onward, from that fork, continuing the same straight course, to that river; (this line, from the mouth of O-yong-wong- yeh Creek to the river Niagara, above Fort Schlosser, being the eastern boundary of a strip of land, extending from the same line to Niagara River, which the Seneka nation ceded to the King of Great Britain, at a treaty held about thirty years ago, with Sir William Johnson;) then the line runs along the river Niagara to Lake Erie; then along Lake Erie to the north-east corner of a triangular piece of land which the United States conveyed to the state of Pennsyl- vania, as by the President's patent, dated the third day of March, 1792; then due south to the northern boundary of that state; then due east to the south-west corner of the land sold by the Seneka nation to Oliver Phelps; and then north and northerly, along Phelps's line, to the place begin- ning on Lake Ontario. Now, the United States acknowledge all the land within the aforementioned boundaries, to be the property of the Seneka nation; and the United States will never claim the same, nor disturb the Seneka nation, nor any of the Six Nations, or their Indian friends residing thereon and united with them, in the free use and enjoy- ment thereof: but it shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.
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Article IV
The United States having thus described and acknowl- edged what lands belong to the Oneidas, Onondagas, Cayu- gas, and Senekas, and engaged never to claim the same, nor to disturb them, or any of the Six Nations, or their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: Now the Six Nations, and each of them, hereby engage that they will never claim any other lands within the boundaries of the United States ; nor ever disturb the people of the United States in the free use and enjoyment thereof.
Article V
The Seneka nation, all others of the Six Nations con- curring, cede to the United States the right of making a wagon road from Fort Schlosser to Lake Erie, as far south as Buffaloe Creek; and the people of the United States shall have the free and undisturbed use of this road, for the purposes of travelling and transportation. And the Six Nations, and each of them, will forever allow to the people of the United States, a free passage through their lands, and the free use of their harbors and rivers adjoining and within their respective tracts of land, for the passing and securing of vessels and boats, and liberty to land their car- goes when necessary for their safety.
Article VI
In consideration of the peace and friendship hereby estab- lished, and of the engagements entered into by the Six Na- tions; and because the United States desire, with humanity and kindness, to contribute to their comfortable support ; and to render the peace and friendship hereby established strong and perpetual; the United States now deliver to the Six Nations, and the Indians of the other nations residing among and united with them, a quantity of goods of the value of ten thousand dollars. And for the same considerations, and with a view to promote the future welfare of the Six
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Nations, and of their Indian friends aforesaid, the United States will add the sum of three thousand dollars to the one thousand five hundred dollars, heretofore allowed them by an article ratified by the President, on the twenty-third day of April 1792; making in the whole, four thousand five hundred dollars ; which shall be expended yearly forever, in purchasing clothing, domestic animals, implements of hus- bandry and other utensils suited to their circumstances, and in compensating useful artificers, who shall reside with them or near them, and be employed for their benefit. The im- mediate application of the whole annual allowance now stipulated, to be made by the superintendent appointed by the President for the affairs of the Six Nations, and their B Indian friends aforesaid.
Article VII
Lest the firm peace and friendship now established should be interrupted by the misconduct of individuals, the United States and Six Nations agree, that for injuries done by individuals on either side, no private revenge or retaliation shall take place; but, instead thereof, complaint shall be made by the party injured, to the other : By the Six Nations or any of them, to the President of the United States, or the Superintendent by him appointed: and by the Super- intendent, or other person appointed by the President, to the principal chiefs of the Six Nations, or of the nation to which the offender belongs : and such prudent measures shall then be pursued as shall be necessary to preserve our peace and friendship unbroken; until the legislature (or great council) of the United States shall make the equitable pro- vision for the purpose.
Note: It is clearly understood by the parties to this treaty, that the annuity stipulated in the sixth article, is to be applied to the benefit of such of the Six Nations and of their Indian friends united with them as aforesaid, as do or shall reside within the boundaries of the United States: for the United States do not interfere with nations, tribes or families, of Indians elsewhere resident.
WASHINGTON'S FAREWELL
ADDRESS
(1796)
[Washington refused to be a candidate for a third term of the Presidency; and in May, 1796, he sent to Hamilton a rough draft of his farewell address, asking for his criticism. After much re- vision by both the doctmient was published on Sept. 19, and was read to the House of Representatives. The advice contained in it has ever since exercised a profound influence on the policy of the nation.]
Friends and Fellow-Citizens:
THE period for a new election of a Citizen, to admin- ister the Executive Government of the United States, being not far distant, and the time actually arrived, when your thoughts must be employed in designating the person, who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprize you of the resolution I have formed, to decline being considered among the number of those, out of whom a choice is to be made.
I beg you, at the same time, to do me the justice to be assured, that this resolution has not been taken, without a strict regard to all the considerations appertaining to the relation, which binds a dutiful citizen to his country — and that, in withdrawing the tender of service which silence in my situation might imply, I am influenced by no diminution of zeal for your future interest, no deficiency of grateful respect for your past kindness; but am supported by a full conviction that the step is compatible with both.
The acceptance of, and continuance hitherto in, the office to which your suffrages have twice called me, have been a imiform sacrifice of inclination to the opinion of duty,
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and to a deference for what appeared to be your desire. — I constantly hoped that it would have been much earlier in my power, consistently with motives, which I was not at liberty to disregard, to return to that retirement, from which I had been reluctantly drawn. — The strength of my inclination to do this, previous to the last election, had even led to the preparation of an address to declare it to you; but mature reflection on the then perplexed and critical posture of our affairs with foreign Nations, and the unan- imous advice of persons entitled to my confidence, impelled me to abandon the idea. —
I rejoice, that the state of your concerns, external as well as internal, no longer renders the pursuit of inclination in- compatible with the sentiment of duty, or propriety ; and am persuaded, whatever partiality may be retained for my services, that, in the present circumstances of our country, you will not disapprove my determination to retire.
The impressions, with which I first undertook the arduous trust, were explained on the proper occasion. In the dis- charge of this trust, I will only say, that I have, with good intentions, contributed towards the organization and ad- ministration of the government, the best exertions of which a very fallible judgment was capable. — Not unconscious, in the outset, of the inferiority of my qualifications, experience in my own eyes, perhaps still more in the eyes of others, has strengthened the motives to diffidence of myself; and every day the increasing weight of years admonishes me more and more, that the shade of retirement is as necessary to me as it will be welcome. — Satisfied, that, if any circum- stances have given peculiar value to my services, they were temporary, I have the consolation to believe, that, while choice and prudence invite me to quit the political scene, patriotism does not forbid it.
In looking forward to the moment, which is intended to terminate the career of my public life, my feelings do not permit me to suspend the deep acknowledgment of that debt of gratitude, which I owe to my beloved country, — for the many honors it has conferred upon me; still more for the stedfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of mani-
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festing my inviolable attachment, by services faithful and persevering, though in usefulness unequal to my zeal. — If benefits have resulted to our country from these services, let it always be remembered to your praise, and as an in- structive example in our annals, that under circumstances in which the Passions, agitated in every direction, were liable to mislead, amidst appearances sometimes dubious, vicissitudes of fortune often discouraging, in situations in which not unfrequently want of success has countenanced the spirit of criticism, the constancy of your support was the essential prop of the efforts, and a guarantee of the plans by which they were effected. — Profoundly penetrated with this idea, I shall carry it with me to my grave, as a strong incitement to unceasing vows that Heaven may con- tinue to you the choicest tokens of its beneficence — that your union and brotherly affection may be perpetual — that the free constitution, which is the work of your hands, may be sacredly maintained — ^that its administration in every de- partment may be stamped with wisdom and virtue — that, in fine, the happiness of the people of these States, under the auspices of liberty, may be made complete, by so careful a preservation and so prudent a use of this blessing, as will acquire to them the glory of recommending it to the ap- plause, the affection, and adoption of every nation, which is yet a stranger to it.
Here, perhaps, I ought to stop. — But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me on an occasion like the present, to offer to your solemn con- templation, and to recommend to your frequent review, some sentiments; which are the result of much reflection, of no inconsiderable observation and which appear to me all important to the permanency of your felicity as a People. These will be offered to you with the more freedom, as you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to bias his counsel. — Nor can I forget, as an encourage- ment to it, your indulgent reception of my sentiments on a former and not dissimilar occasion.
Interwoven as is the love of liberty with every ligament
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of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment. —
The Unity of Government, which constitutes you one peo- ple, is also now dear to you. — ^It is justly so; for it is a main Pillar in the Edifice of your real independence; the support of your tranquillity at home; your peace abroad; of your safety; of your prosperity in every shape; of that very Liberty, which you so highly prize. — But as it is easy to foresee, that, from different causes, and from different quarters, much pains will be taken, many artifices em- ployed, to weaken in your minds the conviction of this truth; — as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed it is of infinite moment, that you should properly estimate the immense value of your na- tional Union to your collective and individual happiness; — that you should cherish a cordial, habitual, and immove- able attachment to it; accustoming yourselves to think and speak of it as of the Palladium of your political safety and prosperity; watching for its preservation with jealous anxiety ; discountenancing whatever may suggest even a sus- picion, that it can in any event be abandoned, and indig- nantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest, or to enfeeble the sacred ties which now link together the various parts.
For this you have every inducement of sympathy and interest. — Citizens by birth or choice of a common country, that country has a right to concentrate your affections. — The name of American, which belongs to you, in your na- tional capacity, must always exalt the just pride of Patriot- ism, more than any appellation derived from local discrimina- tions. With slight shades of difference, you have the same Religion, Manners, Habits, and Political Principles. You have in a common cause fought and triumphed together; the Independence and Liberty you possess are the work of joint counsels, and joint efforts — of common dangers, suffer- ings, and successes. —
But these considerations, however powerfully they address
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themselves to your sensibility, are greatly outweighed by those which apply more immediately to your Interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the Union of the whole.
The North, in an unrestrained intercourse with the South, protected by the equal Laws of a common government, finds, in the productions of the latter, great additional resources of maritime and commercial enterprise — and precious ma- terials of manufacturing industry. — ^The South, in the same intercourse, benefiting by the agency of the North, sees its agriculture grow and its commerce expand. Turning partly into its own channels the seamen of the North, it finds its particular navigation envigorated; — and, while it contrib- utes, in different ways, to nourish and increase the general mass of the national navigation, it looks forward to the pro- tection of a maritime strength to which itself is unequally adapted. The East, in a like intercourse with the West, already finds, and in the progressive improvement of in- terior communications, by land and water, will more and more find, a valuable vent for the commodities which it brings from abroad, or manufactures at home. — ^The West derives from the East supplies requisite to its growth and comfort, and — what is perhaps of still greater consequence, it must of necessity owe the secure enjoyment of indispensable out- lets for its own productions to the weight, influence, and the future maritime strength of the Atlantic side of the Union, directed by an indissoluble community of interest as one Nation. — ^Any other tenure by which the West can hold this essential advantage, whether derived from its own separate strength, or from an apostate and unnatural connection with any foreign power, must be intrinsically precarious.
While then every part of our Country thus feels an im- ' mediate and particular interest in Union, all the parts com- bined in the united mass of means and efforts cannot fail to find greater strength, greater resource, proportionably greater security from external danger, a less frequent in- terruption of their Peace by foreign Nations; and, what is of inestimable value! they must derive from Union an exemption from those broils and wars between themselves.
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which so frequently afflict neighbouring countries, not tied together by the same governments; which their own rival- ships alone would be sufficient to produce; but which op- posite foreign alliances, attachments, and intrigues would stimulate and embitter. — Hence likewise they will avoid the necessity of those overgrown Military establishments, which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to Republican Liberty. In this sense it is, that your Union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preserva- tion of the other.
These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of the Union as a primary object of Patriotic desire. Is there a doubt, whether a common government can embrace so large a sphere? — Let experience solve it. To listen to mere speculation in such a case were criminal. — We are authorized to hope that a proper organization of the whole, with the auxiliary agency of governments for the respective subdivisions, will afford a happy issue to the experiment. It is well worth a fair and full experiment. With such powerful and obvious motives to Union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason to distrust the patriotism of those, who in any quarter may endeavour to weaken its bands. —
In contemplating the causes which may disturb our Union, it occurs as matter of serious concern, that any ground should have been furnished for characterizing parties by geographical discriminations — Northern and Southern, At- lantic and Western; whence designing men may endeavour to excite a belief, that there is a real difference of local interests and views. One of the expedients of Party to acquire influence, within particular districts, is to mis- represent the opinions and aims of other districts. — You cannot shield yourselves too much against the jealousies and heart burnings, which spring from these misrepresentations ; — they tend to render alien to each other those, who ought to be bound together by fraternal affection. — The inhabitants
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of our Western country have lately had a useful lesson on this head — they have seen, in the negotiation by the Execu- tive, and in the unanimous ratification by the Senate, of the treaty with Spain, and in the universal satisfaction at that event, throughout the United States, a decisive proof how unfounded were the suspicions propagated among them of a policy in the General Government and in the Atlantic States unfriendly to their interests in regard to the Missis- sippi— they have been witnesses to the formation of two Treaties, that with Great Britain, and that with Spain, which secure to them every thing they could desire, in respect to our Foreign Relations, towards confirming their prosperity. — Will it not be their wisdom to rely for the preservation of these advantages on the Union by which they were pro- cured?— Will they not henceforth be deaf to those advisers, if such there are, who would sever them from their Brethren, and connect them with Aliens? —
To the efficacy and permanency of your Union, a Govern- ment for the whole is indispensable. — No alliances, however strict between the parts can be an adequate substitute. — They must inevitably experience the infractions and inter- ruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a Constitution of Gov- ernment, better calculated than your former for an intimate Union, and for the efficacious management of your common concerns. — This government, the offspring of our own choice uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amend- ment, has a just claim to your confidence and your support. — Respect for its authority, compliance with its Laws, acqui- escence in its measures, are duties enjoined by the funda- mental maxims of true Liberty. — The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. — But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all. — The very idea of the power and the right of the People
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to establish Government presupposes the duty of every in- dividual to obey the established Government.
All obstructions to the execution of the Laws, all combi- nations and associations, under whatever plausible character, with the real design to direct, controul, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. — They serve to organize faction, to give it an artificial and extraordinary force — to put in the place of the delegated will of the nation, the will of a party ; — often a small but artful and enterprising minority of the community; — and, according to the alternate triumphs of different parties, to make the public administration the mir- ror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common councils, and modified by mutual in- terests.— However combinations or associations of the above descriptions may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the Power of the People, and to usurp for themselves the reins of Government; destroying afterwards the very engines, which have lifted them to un- just dominion. —
Towards the preservation of your Government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. — One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. — In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of Govern- ments, as of other human institutions — ^that experience is the surest standard, by which to test the real tendency of the existing Constitution of a Country — that facility in changes upon the credit of mere hypothesis and opinion exposes to perpetual change, from the endless variety of
Hc XLin (g)
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hypothesis and opinion: — and remember, especially, that, for the efficient management of your common interests, in a country so extensive as ours, a Government of as much vigor as is consistent with the perfect security of Liberty is in- dispensible. — Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest Guardian. — It is, indeed, little else than a name, where the Government is too feeble to withstand the enterprise of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.
I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on Geographical discriminations. — Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the Spirit of Party, generally.
This Spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. —It exists under different shapes in all Governments, more or less stifled, controuled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy. —
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissen- sion, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. ^-But this leads at length to a more formal and permanent despotism. — ^The disorders and miseries, which result, gradu- ally incline the minds of men to seek security and repose in the absolute power of an Individual ; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.
Without looking forward to an extremity of this kind, (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of Party are sufficient to make it the interest and duty of a wise people to discourage and restrain it. —
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It serves always to distract the Public Councils, and en- feeble the Public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. — It opens the door to foreign influence and corruption, which find a facilitated access to the Gov- ernment itself through the channels of party passions. Thus the policy and the will of one country, are subjected to the policy and will of another.
There is an opinion, that parties in free countries are useful checks upon the Administration of the Government, and serve to keep alive the spirit of Liberty. — This within certain limits is probably true — and in Governments of a Monarchical cast, Patriotism may look with indulgence, if not with favor, upon the spirit of party. — But in those of the popular character, in /Governments purely elective, it is a spirit not to be encouraged. — From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose, — and there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. — ^A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.
It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration, to confine themselves within their re- spective constitutional spheres; avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. — A just estimate of that love of power, and proneness to abuse it, which pre- dominates in the human heart, is sufficient to satisfy us of the truth of this position. — The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. — To preserve them must be as necessary as to institute
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them. If, in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates. — But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. — The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield. —
Of all the dispositions and habits, which lead to political prosperity. Religion, and Morality are indispensable supports. — In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. — The mere Politician, equally with the pious man, ought to respect and to cherish them. — ^A volume could not trace all their connexions with private and public felicity. — ' Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. — Whatever may be conceded to the influence of refined education on minds of peculiar structure — reason and ex- perience both forbid us to expect, that national morality can prevail in exclusion of religious principle. —
'Tis substantially true, that virtue or morality is a neces- sary spring of popular government. — The rule indeed extends with more or less force to every species of Free Government. — Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric? —
Promote, then, as an object of primary importance, in- stitutions for the general diffusion of knowledge. In pro- portion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.
As a very important source of strength and security, cherish public credit. — One method of preserving it is, to use it as sparingly as possible: — avoiding occasions of ex- pense by cultivating peace, but remembering also that timely
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disbursements to prepare for danger frequently prevent much greater disbursements to repel it — avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of Peace to dis- charge the debts which unavoidable wars may have occa- sioned, not ungenerously throwing upon posterity the burthen which we ourselves ought to bear. The execution of these maxims belongs to your Representatives, but it is necessary that public opinion should cooperate. — To facilitate to them the performance of their duty, it is essential that you should practically bear in mind, that towards the payment of debts there must be Revenue — that to have Revenue there must be taxes — that no taxes can be devisea, which are not more or less inconvenient and unpleasant — that the intrinsic em- barrassment, inseparable from the selection of the proper objects (which is always a choice of difficulties) ought to be a decisive motive for a candid construction of the con- duct of the Government in making it, and for a spirit of acquiescence in the measures for obtaining Revenue, which the public exigencies may at any time dictate. —
Observe good faith and justice towards all Nations. Cultivate peace and harmony with all. — Religion and Mor- ality enjoin this conduct; and can it be, that good policy does not equally enjoin it? — It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a People always guided by an exalted justice and benevolence. — iWho can doubt that in the course of time and things, the fruits of such a plan would richly repay any temporary ad- vantages, which might be lost by a steady adherence to it? Can it be that Providence has not connected the permanent felicity of a Nation with its virtue? The experiment, at least, is recommended by every sentiment which ennobles human nature. — Alas ! is it rendered impossible by its vices ?
In the execution of such a plan nothing is more essential than that permanent, inveterate antipathies against particu- lar nations and passionate attachments for others, should be excluded; and that, in place of them, just and amicable feelings towards all should be cultivated. — The Nation, which indulges towards another an habitual hatred or an
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habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is suffi- cient to lead it astray from its duty and its interest. — Antip- athy in one nation against another disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable, when acci- dental or trifling occasions of dispute occur. — Hence fre- quent collisions, obstinate, envenomed and bloody contests. — The Nation prompted by ill-will and resentment, some- times impels to War the Government, contrary to the best calculations of policy. — The Government sometimes partici- pates in the national propensity, and adopts through passion what reason would reject; — at other times, it makes the animosity of the Nation subservient to projects of hostility instigated by pride, ambition, and other sinister and per- nicious motives. — The peace often, sometimes perhaps the Liberty, of Nations has been the victim. —
So likewise a passionate attachment of one Nation for another produces a variety of evils. — Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, be- trays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justifica- tion. It leads also to concessions to the favorite Nation of privileges denied to others, which is apt doubly to injure the Nation making the concessions; by unnecessarily part- ing with what ought to have been retained; and by excit- ing jealousy, ill-will, and a disposition to retaliate, in the parties from whom equal privileges are withheld; and it gives to ambitious, corrupted, or deluded citizens, (who de- vote themselves to the favorite Nation) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity: — gilding, with the appearances of a virtuous sense of obligation, a commend- able deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. —
As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlight-
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ened and independent Patriot. — How many opportunities do they afford to tamper with domestic factions, to practise the arts of seduction, to mislead public opinion, to influence or awe the public councils! Such an attachment of a small or weak, towards a great and powerful nation, dooms the former to be the satelHte of the latter.
Against the insidious wiles of foreign influence, I conjure you to believe me, fellow-citizens, the jealousy of a free people ought to be constantly awake; since history and ex- perience prove that foreign influence is one of the most baneful foes of republican Government. — But that jealousy, to be useful, must be impartial; else it becomes the instru- ment of the very influence to be avoided, instead of a de- fense against it. — Excessive partiality for one foreign na- tion, and excessive dislike of another, cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real Patriots, who may resist the intrigues of the favourite, are liable to become suspected and odious; while its tools and dupes usurp the applause and confidence of the people, to sur- render their interests. —
The great rule of conduct for us, in regard to foreign Nations, is, in extending our commercial relations, to have with them as little Political connection as possible. — So far as we have already formed engagements, let them be ful- filled with perfect good faith. — Here let us stop. —
Europe has a set of primary interests, which to us have none, or a very remote relation. — Hence she must be en- gaged in frequent controversies, the causes of which are essentially foreign to our concerns. — Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties in the ordinary vicissitudes of her politics, or the ordi- nary combinations and collisions of her friendships, or en- mities.
Our detached and distant situation invites and enables us to pursue a different course. — li we remain one People, under an efficient government, the period is not far off, when we may defy material injury from external annoy- ance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupu-
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lously respected. When belligerent nations, under the im- possibility of making acquisitions upon us, will not lightly hazard the giving us provocation when we may choose peace or war, as our interest, guided by our justice, shall counsel.
Why forego the advantages of so peculiar a situation? — Why quit our own to stand upon foreign ground? — Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice? — â–
'Tis our true policy to steer clear of permanent alliances, with any portion of the foreign world; — so far, I mean, as we are now at liberty to do it ; — for let me not be understood as capable of patronizing infidelity to existing engagements. (I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy.) — I repeat it therefore let those engagements be observed in their genuine sense. — But in my opinion it is unnecessary and would be unwise to extend them. —
Taking care always to keep ourselves, by suitable estab- lishments, on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies. —
Harmony, liberal intercourse with all nations, are recom- mended by policy, humanity, and interest. But even our commercial policy should hold an equal and impartial hand: — neither seeking nor granting exclusive favors or prefer- ences;— consulting the natural course of things; — [diffusing and diversifying by gentle means the streams of commerce, but forcing nothing; — establishing with Powers so disposed —in order to give trade a stable course, to define the rights of our Merchants, and to enable the Government to support them — conventional rules of intercourse, the best that present circumstances and mutual opinion will permit ; but temporary, and liable to be from time to time abandoned or varied, as experience and circumstances shall dictate; constantly keep- ing in view, that *tis folly in one nation to look for dis- interested favors from another; — that it must pay with a portion of its independence for whatever it may accept under that character — ^that by such acceptance, it may place itself in the condition of having given equivalents for nominal
AMERICAN HISTORICAL DOCUMENTS 265
favors, and yet of being reproached with ingratitude for not giving more. — There can be no greater error than to ex- pect or calculate upon real favors from Nation to Nation. *Tis an illusion, which experience must cure, which a just pride ought to discard.
In offering to you, my Countrymen, these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression, I could wish, — that they will controul the usual current of the passions, or prevent our Nation from running the course which has hitherto marked the destiny of Nations. But if I may even flatter myself, that they may be productive of some partial benefit; some occasional good; that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign intrigue, to guard against the im- postures of pretended patriotism, this hope will be a full recompense for the solicitude for your welfare, by which they have been dictated. —
How far in the discharge of my official duties, I have been guided by the principles which have been delineated, the public Records and other evidences of my conduct musjt witness to You and to the world. — To myself the assurance of my own conscience is, that I have at least believed my- self to be guided by them.
In relation to the still subsisting War in Europe, my Proclamation of the 226. of April 1793 is the index to my plan. — Sanctioned by your approving voice and by that of your Representatives in both Houses of Congress, the spirit of that measure has continually governed me: — uninfluenced by any attempts to deter or divert me from it.
After deliberate examination with the aid of the best lights I could obtain, I was well satisfied that our country, under all the circumstances of the case, had a right to take, and was bound in duty and interest to take, a Neutral posi- tion.— Having taken it, I determined, as far as should de- pend upon me, to maintain it, with moderation, perseverance, and firmness. —
The considerations which respect the right to hold this conduct, it is not necessary on this occasion to detail. I will only observe, that, according to my understanding of the
266 AMERICAN HISTORICAL DOCUMEN'l'S
matter, that right, so far from being denied by any of the Belligerent Powers, has been virtually admitted by all. —
The duty of holding a neutral conduct may be inferred, without any thing more, from the obligation which justice and humanity impose on every Nation, in cases in which it is free to act, to maintain inviolate the relations of Peace and Amity towards other Nations. —
The inducements of interest for observing that conduct will best be referred to your own reflections and experience. — With me, a predominant motive has been to endeavour to gain time to our country to settle and mature its yet recent institutions, and to progress without interruption to that degree of strength and consistency, which is necessary to give it, humanly speaking, the command of its own fortunes.
Though, in reviewing the incidents of my Administration, I am unconscious of intentional error— I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. — Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. — I shall also carry with me the hope that my country will never cease to view them with indulgence; and that, after forty-five years of my life dedicated to its service with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as my- self must soon be to the mansions of rest.
Relying on its kindness in this as in other things, and actuated by that fervent love towards it, which is so natural to a man, who views in it the native soil of himself and his progenitors for several generations; — I anticipate with pleasing expectation that retreat, in which I promise my- self to realize, without alloy, the sweet enjoyment of par- taking, in the midst of my fellow-citizens, the benign in- fluence of good Laws under a free Government, the ever favorite object of my heart, and the happy reward, as I trust, of our mutual cares, labors, and dangers.
TREATY WITH FRANCE
(«8o3)
[By a treaty concluded in 1795, Spain had agreed to allow to the United States the use of New Orleans or an equivalent port on the Mississippi; but in 1802 she violated this agreement by closing the Mississippi, and ceding all Louisiana to France. The United States, realizing the danger of having such a power as France holding the natural outlet for a large proportion of the produce of the country, appropriated $2,000,000 to purchase New Orleans. Livingstone and Monroe concluded with Napoleon the purchase of the whole Louisiana territory for $15,000,000; their action was rati- fied; and the United States took possession on Dec. 20, 1805.]
Treaty with France for the Cession of Louisiana, Con- cluded AT Paris, April 30, 1803; Ratification Ad- vised BY Senate, October 20, 1803 ; Ratified by Presi- dent October 21, 1803; Ratifications Exchanged at Washington October 21, 1803; Proclaimed October 21, 1803.
THE President of the United States of America, and the First Consul of the French Republic, in the name of the French people, desiring to remove all source of misunderstanding relative to objects of discus- sion mentioned in the second and fifth articles of the con- vention of the 8th Vendemiaire, an 9 (30th September, 1800) relative to the rights claimed by the United States, in virtue of the treaty concluded at Madrid, the 27th of October, 1795, between His Catholic Majesty and the said United States, and willing to strengthen the union and friendship which at the time of the said convention was happily re-established between the two nations, have re- spectively named their Plenipotentiaries, to wit: the Presi- dent of the United States, [of America,] by and with the advice and consent of the Senate of the said States, Robert R. Livingston, Minister Plenipotentiary of the United
267
268 AMERICAN HISTORICAL DOCUMENTS
States, and James Monroe, Minister Plenipotentiary and Envoy Extraordinary of the said States, near the Govern- ment of the French Republic; and the First Consul, in the name of the French people, Citizen Francis Barbe Marbois, Minister of the Public Treasury; who, after having respect- ively exchanged their full powers, have agreed to the fol- lowing articles:
Article I
Whereas by the article of the third of the treaty concluded at St. Idelfonso, the 9th Vendemiaire, an 9 (ist October, 1800,) between the First Consul of the French Republic and His Catholic Majesty, it was agreed as follows: "His Catholic Majesty promises and engages on his part, to cede to the French Republic, six months after the full and entire execution of the conditions and stipulations herein relative to His Royal Highness the Duke of Parma, the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed .it, and such as it should be after the treaties subsequently entered into between Spain and other States." And whereas, in pursuance of the treaty, and particularly of the third arti- cle, the French Republic has an incontestable title to the domain and to the possession of the said territory: The i irst Consul of the French Republic desiring to give to the United States a strong proof of his friendship, doth hereby cede to the said United States, in the name of the French Republic, forever and in full sovereignty, the said territory, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French Republic, in virtue of the above-mentioned treaty, concluded with His Catholic Majesty.
Article II
In the cession made by the preceding article are included the adjacent islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, forti- fications, barracks and other edifices which are not private property. The archives, papers, and documents, relative to
AMERICAN HISTORICAL DOCUMENTS 269
the domain and sovereignty of Louisiana and its depend- ences, will be left in the possession of the commissaries of the United States, and copies will be afterwards given in due form to the magistrates and municipal officers of such of the said papers and documents as may be necessary to them.
Article III
The inhabitants of the ceded territory shall be incor- porated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.
Article IV
There shall be sent by the Government of France a com- missary to Louisiana, to the end that he do every act neces- sary, as well to receive from the officers of His Catholic Majesty the said country and its dependences, in the name of the French Republic, if it has not been already done, as to transmit it in the name of the French Republic to the commissary or agent of the United States.
Article V
Immediately after the ratification of the present treaty by the President of the United States, and in case that of the First Consul shall have been previously obtained, tba commissary of the French Republic shall remit all military posts of New Orleans, and other parts of the ceded terri- tory, to the commissary or commissaries named by the President to take possession; the troops, whether of France or Spain, who may be there shall cease to occupy any mil- itary post from the time of taking possession, and shall be embarked as soon as possible, in the course of three months after the ratification of this treaty.
270 AMERICAN HISTORICAL DOCUMENTS
Article VI
The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon.
Article VII
As it is reciprocally advantageous to the commerce of France and the United States to encourage the communica- tion of both nations for a limited time in the country ceded by the present treaty, until general arrangements relative to the commerce of both nations may be agreed on ; it has been ' agreed between the contracting parties, that the French ships coming directly from France or any of her colonies, loaded only with the produce and manufactures of France or her said colonies; and the ships of Spain coming directly from Spain or any of her colonies, loaded only with the prod- uce or manufactures of Spain or her colonies, shall be admitted during the space of twelve years in the port of New Orleans, and in all other legal ports of entry within the ceded territory, in the same manner as the ships of the United States coming directly from France or Spain, or any of their colonies, without being subject to any other or greater duty on merchandize, or other or greater tonnage than that paid by the citizens of the United States.
During the space of time above mentioned, no other nation shall have a right to the same privileges in the ports of the ceded territory; the twelve years shall commence three months after the exchange of ratifications, if it shall take place in France, or three months after it shall have i been notified at Paris to the French Government, if it shall â– take place in the United States; it is however well under- stood that the object of the above article is to favor the manufactures, commerce, freight, and navigation of France and of Spain, so far as relates to the importations that the French and Spanish shall make into the said ports of the United States, without in any sort affecting the regulations
AMERICAN HISTORICAL DOCUMENTS 271
that the United States may make concerning the exportation of the produce and merchandize of the United States, or any right they may have to make such regulations.
Article VIII
In future and forever after the expiration of the twelve years, the ships of France shall be treated upon the footing of the most favoured nations in the ports above mentioned.
Article IX
The particular convention signed this day by the respec- tive ministers, having for its object to provide for the pay-* ment of debts due to the citizens of the United States -by the French Republic prior to the 30th Septr., 1800, (8th Vende- miaire, an 9,) is approved, and to have its execution in the same manner as if it had been inserted in this present treaty ; and it shall be ratified in the same form and in the same time, so that the one shall not be ratified distinct from the other.
Another particular convention signed at the same date as the present treaty relative to a definitive rule between the contracting parties is in the like manner approved, and will be ratified in the same form, and in the same time, and jointly.
Article X
The present treaty shall be ratified in good and due form, and the ratifications shall be exchanged in the space of six months after the date of the signature by the Ministers • Plenipotentiary, or sooner if possible.
In faith whereof, the respective Plenipotentiaries have signed these articles in the French and English languages; declaring nevertheless that the present treaty was originally agreed to in the French language ; and have thereunto affixed their seals.
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AMERICAN HISTORICAL DOCUMENTS
Done at Paris the tenth day of Floreal, in the eleventh year of the French Republic, and the 30th of April, 1803.
RoBT. R. Livingston [l. s.] Jas. Monroe [l. s.]
F. Barbe Marbois [l. s.]
TREATY
WITH GREAT BRITAIN
(1814)
[This treaty brought to a close the " War of 1812."]
Treaty of Peace and Amity between His Britannic Majesty and the United States of America, Con- cluded at Ghent December 24, 1814; Ratification Advised by Senate February 16, 181 5; Ratified by President February 17, 1815; Ratifications Ex- changed AT Washington February 17, 1815; Pro- claimed February 18, 181 5.
HIS Britannic Majesty and the United States of America, desirous of terminating the war which has unhappily subsisted between the two countries, and of restoring, upon principles of perfect reciprocity, peace, friendship, and good understanding between them, have, for that purpose, appointed their respective Pleni- potentiaries, that is to say:
His Britannic Majesty, on his part, has appointed the Right Honourable James Lord Gambier, late Admiral of the White, now Admiral of the Red Squadron of His Maj- esty's fleet, Henry Goulburn, Esquire, a member of the Imperial Parliament, and Under Secretary of State, and William Adams, Esquire, Doctor of Civil Laws; and the President of the United States, by and with the advice and consent of the Senate thereof, has appointed John Quincy Adams, James A. Bayard, Henry Clay, Jonathan Russell, and Albert Gallatin, citizens of the United States;
Who, after a reciprocal communication of their respective full powers, have agreed upon the following articles:
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274 AMERICAN HISTORICAL DOCUMENTS
Article I
There shall be a firm and universal peace between His Britannic Majesty and the United States, and between their respective countries, territories, cities, towns, and people, of every degree, without exception of places or persons. All hostilities, both by sea and land, shall cease as soon as this treaty shall have been ratified by both parties, as hereinafter mentioned. All territory, places, and possessions whatso- ever, taken by either party from the other during the war, or which may be taken after the signing of this treaty, excepting only the islands hereinafter mentioned, shall be restored without delay, and without causing any destruc- tion or carrying away any of the artillery or other public property originally captured in the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty, or any slaves or other private property. And all archives, records, deeds, and papers, either of a public nature or belonging to private persons, which, in the course of the war, may have fallen into the hands of the officers of either party, shall be, as far as may be practicable, forthwith restored and delivered to the proper authorities and persons to whom they respectively belong. Such of the islands in the Bay of Passamaquoddy as are claimed by both parties, shall remain in the possession of the party in whose occupation they may be at the time of the exchange of the ratifications of this treaty, until the decision respecting the title to the said islands shall have been made in conformity with the fourth article of this treaty. No disposition made by this treaty as to such posses- sion of the islands and territories claimed by both parties shall, in any manner whatever, be construed to affect the right of either.
Article II
Immediately after the ratifications of this treaty by both parties, as hereinafter mentioned, orders shall be sent to the armies, squadrons, officers, subjects and citizens of the two Powers to cease from all hostilities. And to prevent all causes of complaint which might arise on account of the
AMERICAN HISTORICAL DOCUMENTS 111
prizes which may be taken at sea after the said ratifications of this treaty, it is reciprocally agreed that all vessels and effects which may be taken after the space of twelve days from the said ratifications, upon all parts of the coast of North America, from the latitude of twenty-three degrees north to the latitude of fifty degrees north, and as far eastward in the Atlantic Ocean as the thirty-sixth degree of west longitude from the meridian of Greenwich, shall be restored on each side: that the time shall be thirty days In all other parts of the Atlantic Ocean north of the equinoctial line or equator, and the same time for the British and Irish Channels, for the Gulf of Mexico, and all parts of the West Indies; forty days for the North Seas, for the Baltic, and for all parts of the Mediterranean; sixty days for the Atlantic Ocean south of the equator, as far as the latitude of the Cape of Good Hope; ninety days for every other part of the world south of the equator ; and one hundred and twenty days for all other parts of the world, without exception.
Article III
All prisoners of war taken on either side, as well by land as by sea, shall be restored as soon as practicable after the ratifications of this treaty, as hereinafter mentioned, on their paying the debts which they may have contracted during their captivity. The two contracting parties respectively engage to discharge, in specie, the advances which may have been made by the other for the sustenance and main- tenance of such prisoners.
ArticlkIV
Whereas it was stipulated by the second article in the treaty of peace of one thousand seven hundred and eighty- three, between His Britannic Majesty and the United States of America, that the boundary of the United States should comprehend all islands within twenty leagues of any part of the shores of the United States, and lying between lines to be drawn due east from the points where the afore- said boundaries, between Nova Scotia on the one part, and
276 AMERICAN HISTORICAL DOCUMENTS
East Florida on the other, shall respectively touch the Bay of Fundy and the Atlantic Ocean, excepting such islands as now are, or heretofore have been, within the limits of Nova Scotia; and whereas the several islands in the Bay of Passa- maquoddy, which is part of the Bay of Fundy, and the Is- land of Grand Menan, in the said Bay of Fundy, are claimed by the United States as being comprehended within their aforesaid boundaries, which said islands are claimed as belonging to His Britannic Majesty, as having been, ac the time of and previous to the aforesaid treaty of one thousand seven hundred and eighty-three, within the limits of the Province of Nova Scotia: In order, therefore, finally to decide upon these claims, it is agreed that they shall be referred to two Commissioners to be appointed in the fol- lowing manner, viz: One Commissioner shall be appointed by His Britannic Majesty, and one by the President of the United States, by and with the advice and consent of the Senate thereof; and the said two Commissioners so ap- pointed shall be sworn Impartially to examine and decide upon the said claims according to such evidence as shall be laid before them on the part of His Britannic Majesty and of the United States respectively. The said Commis- sioners shall meet at St. Andrews, In the Province of New Brunswick, and shall have power to adjourn to such other place or places as they shall think fit. The said Commis- sioners shall, by a declaration or report under their hands and seals, decide to which of the two contracting parties the several islands aforesaid do respectively belong, in con- formity with the true Intent of the said treaty of peace of one thousand seven hundred and eighty- three. And If the said Commissioners shall agree In their decision, both parties shall consider such decision as final and conclusive. It is further agreed that, In the event of the two Commissioners differing upon all or any of the matters so referred to them, or In the event of both or either of the said Com- missioners refusing, or declining, or wilfully omitting to act as such, they shall make, jointly or separately, a report or reports, as well to the Government of His Britannic Majesty as to that of the United States, stating in detail the points on which they differ, and the grounds upon which their
AMERICAN HISTORICAL DOCUMENTS 277
respective opinions have been formed, or the grounds upon which they, or either of them, have so refused, declined, or omitted to act. And His Britannic Majesty and the Gov- ernment of the United States hereby agree to refer the re- port or reports of the said Commissioners to some friendly sovereign or State, to be then named for that purpose, and vi^ho shall be requested to decide on the differences which may be stated in the said report or reports, or upon the report of one Commissioner, together with the grounds upon which the other Commissioner shall have refused, declined, or omitted to act, as the case may be. And if the Commis- sioner so refusing, declining, or omitting to act, shall also wilfully omit to state the grounds upon which he has so done, in such manner that the said statement may be re- ferred to such friendly sovereign or State, together with the report of such other Commissioner, then such sovereign or State shall decide ex parte upon the said report alone. And His Britannic Majesty and the Government of the United States engage to consider the decision of such friend- ly sovereign or State to be final and conclusive on all the matters so referred.
Article V
Whereas neither that point of the highlands lying due north from the source of the river St. Croix, and designated in the former treaty of peace between the two Powers as the northwest angle of Nova Scotia, nor the northwestern- most head of Connecticut River, has yet been ascertained; and whereas that part of the boundary line between the dominions of the two Powers which extends from the source of the river St. Croix directly north to the above mentioned north west angle of Nova Scotia, thence along the said high- lands which divide those rivers that empty themselves into the river St. Lawrence from those which fall into the Atlan- tic Ocean to the northwesternmost head of Connecticut River, thence down along the middle of that river to the forty-fifth degree of north latitude ; thence by a line due west on said latitude until it strikes the river Iroquois or Catara- quy, has not yet been surveyed: it is agreed that for these several purposes two Commissioners shall be appointed,
278 AMERICAN HISTORICAL DOCUMENTS
sworn, and authorized to act exactly in the manner directed with respect to those mentioned in the next preceding article, unless otherwise specified in the present article. The said Commissioners shall meet at St. Andrews, in the Province of New Brunswick, and shall have power to adjourn to such other place or places as they shall think fit The said Commissioners shall have power to ascertain and determine the points above mentioned, in conformity with the pro- visions of the said treaty of peace of one thousand seven hundred and eighty-three, and shall cause the boundary aforesaid, from the source of the river St. Croix to the river Iroquois or Cataraquy, to be surveyed and marked according to the said provisions. The said Commissioners shall make a map of the said boundary, and annex to it a declaration under their hands and seals, certifying it to be ' the true map of the said boundary, and particularizing the ^titude and longitude of the northwest angle of Nova Scotia, of the northwesternmost head of Connecticut River, and of such other points of the said boundary as they may deem proper. And both parties agree to consider such map and declaration as finally and conclusively fixing the said boundary. And in the event of the said two Commissioners differing, or both or either of them refusing, declining, or wilfully omitting to act, such reports, declarations, or state- ments shall be made by them, or either of them, and such reference to a friendly sovereign or State shall be made in all respects as in the latter part of the fourth article is contained, and in as full a manner as if the same was herein repeated.
Artict.e VI
Whereas by the former treaty of peace that portion of the boundary of the United States from the point where the ' forty-fifth degree of north latitude strikes the river Iroquois or Cataraquy to the Lake Superior, was declared to be '* along the middle of said river into Lake Ontario, through the middle of said lake, until it strikes the communication by water between that lake and Lake Erie, thence along the middle of said communication into Lake Erie, through the middle of said lake until it arrives at the water communica*
AMERICAN HISTORICAL DOCUMENTS 279
tion into Lake Huron, thence through the middle of said lake to the water communication between that lake and Lake Superior;" and whereas doubts have arisen what was the middle of the said river, lakes, and water communica- tions, and whether certain islands lying in the same were within the dominions of His Britannic Majesty or of the United States: In order, therefore, finally to decide these doubts, they shall be referred to two Commissioners, to be appointed, sworn, and authorized to act exactly in the man- ner directed with respect to those mentioned in the next preceding article, unless otherwise specified in this present article. The said Commissioners shall meet, in the first in- stance, at Albany, in the State of New York, and shall have power to adjourn to such other place or places as they shall think fit. The said Commissioners shall, by a report or declaration, under their hands and seals, designate the boundary through the said river, lakes, and water communi- cations, and decide to which of the two contracting parties the several islands lying within the said rivers, lakes, and water communications, do respectively belong, in conformity with the true intent of the said treaty of one thousand seven hundred and eighty-three. And both parties agree to con- sider such designation and decision as final and conclusive. And in the event of the said two Commissioners differing, or both or either of them refusing, declining, or wilfully omit- ting to act, such reports, declarations, or statements shall be made by them, or either of them, and such reference to a friendly sovereign or State shall be made in all respects as in the latter part of the fourth article is contained and in as full a manner as if the same was herein repeated.
Article VII
It is further agreed that the said two last-mentioned Commissioners, after they shall have executed the duties assigned to them in the preceding article, shall be, and they are hereby, authorized upon their oaths impartially to fix and determine, according to the true intent of the said treaty of peace of one thousand seven hundred and eighty- three, that part of the boundary between the dominions of
280 AMERICAN HISTORICAL DOCUMENTS
the two Powers which extends from the water communica- tion between Lake Huron and Lake Superior, to the most northwestern point of the Lake of the Woods, to decide to which of the two parties the several islands lying in the lakes, water communications, and rivers, forming the said boundary, do respectively belong, in conformity with the true intent of the said treaty of peace of one thousand seven hundred and eighty-three; and to cause such parts of the said boundary as require it to be surveyed and marked. The said Commissioners shall, by a report or dec- laration under their hands and seals, designate the bound- ary aforesaid, state their decision on the points thus re- ferred to them, and particularize the latitude and longitude of the most northwestern point of the Lake of the Woods, and of such other parts of the said boundary as they may deem proper. And both parties agree to consider such designation and decision as final and conclusive. And in the event of the said two Commissioners differing, or both or either of them refusing, declining, or wilfully omitting to act, such reports, declarations, or statements shall be made by them, or either of them, and such reference to a friendly sovereign or State shall be made in all respects as in the lat- ter part of the fourth article is contained, and in as full a manner as if the same was herein repeated.
Article VIII
The several boards of two Commissioners mentioned in the four preceding articles shall respectively have power to appoint a secretary, and to employ such surveyors or other persons as they shall judge necessary. Duplicates of all their respective reports, declarations, statements, and de- cisions, and of their accounts, and of the journal of their proceedings, shall be delivered by them to the agents of His Britannic Majesty and to the agents of the United States, who may be respectively appointed and authorized to man- age the business on behalf of their respective Governments. The said Commissioners shall be respectively paid in such manner as shall be agreed between the two contracting parties, such agreement being to be settled at the time of the |
1
AMERICAN HISTORICAL DOCUMENTS 281
exchange of the ratifications of this treaty. And all other expenses attending the said commissions shall be defrayed equally by the two parties. And in the case of death, sick- ness, resignation, or necessary absence, the place of every such Commissioner, respectively, shall be supplied in the same manner as such Commissioner was first appointed, and the new Commissioner shall take the same oath or affirma- tion, and do' the same duties. It is further agreed between the two contracting parties, that in case any of the islands mentioned in any of the preceding articles, which were in the possession of one of the parties prior to the commence- ment of the present war between the two countries, should, by the decision of any of the boards of Commissioners afore- said, or of the sovereign or State so referred to, as in the four next preceding articles contained, fall within thq dominions of the other party, all grants of land made previous to the commencement of the war, by the party hav- ing had such possession, shall be as valid as if such island or islands had, by such decision or decisions, been adjudged to be within the dominions of the party having had such possession.
Article IX
The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, re- spectively, all the possessions, rights, and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Pro- vided always that such tribes or nations shall agree to de- sist from all hostilities against the United States of America, their citizens and subjects, upon the ratification of the pres- ent treaty being notified to such tribes or nations, and shall so desist accordingly. And His Britannic Majesty engages, on his part, to put an end immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom he may be at war at the time of such ratification, and forthwith to restore to such tribes
282 AMERICAN HISTORICAL DOCUMENTS
or nations respectively all the possessions, rights, and privi- leges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided always that such tribes or nations shall agree to desist from all hostilities against His Britannic Majesty, and his subjects, upon ratification of the pres- ent treaty being notified to such tribes or nations, and shall so desist accordingly.
Article X
Whereas the traffic in slaves is irreconcilable with the principles of humanity and justice, and whereas both His Majesty and the United States are desirous of continuing their efforts to promote its entire abolition, it is hereby agreed that both the contracting parties shall use their bes( endeavours to accomplish so desirable an object.
Article XI
This treaty, when the same shall have been ratified on both sides, without alteration by either of the contracting parties, and the ratifications mutually exchanged, shall be binding on both parties, and the ratifications shall be ex- changed at Washington, in the space of four months from this day, or sooner if practicable.
In faith whereof we, the respective Plenipotentiaries, have signed this treaty, and have thereunto affixed our seals.
Done, in triplicate, at Ghent, the twenty-fourth day of December, one thousand eight hundred and fourteen.
Gambier [l. s.]
Henry Goulburn [l. s.]
William Adams [l. s.]
John Quincy Adams [l. s.] J. A. Bayard [l. s.]
H. Clay [l. s.]
Jon A. Russell [l. s.]
Albert Gallatin [l. s.]
ARRANGEMENT AS TO THE
NAVAL FORCE
TO BE RESPECTIVELY MAINTAINED
ON THE AMERICAN LAKES
0817)
[The following letters contain the standing agreement between Great Britain and the United States as to the naval force to be maintained by either country in the Great Lakes.]
Mr. Bagot to Mr. Rush.
Washington, April 28th, 18 17.
THE undersigned, His Britannick Majesty's Envoy Ex- traordinary and Minister Plenipotentiary, has the hon- our to acquaint Mr. Rush, that having laid before His Majesty's Government the correspondence which passed last year between the Secretary of the Department of State and the undersigned upon the subject of a proposal to reduce the Naval Force of the respective countries upon the American Lakes, he has received commands of His Royal Highness the Prince Regent to acquaint the Government of the United States, that His Royal Highness is willing to accede to the proposition made to the undersigned by the Secretary of the Department of State in his note of the 26. of August last.
His Royal Highness acting in the name and on the behalf of His Majesty, agrees, that the Naval force to be main- tained upon the American Lakes by His Majesty and the Government of the United States shall henceforth be con- fined to the following vessels on each side. That is
On Lake Ontario to one vessel not exceeding one hun- dred Tons burthen and armed with one eighteen pound cannon.
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284 AMERICAN HISTORICAL DOCUMENTS
On the upper lakes to two vessels not exceeding like bur- then each and armed with like force.
On the waters of Lake Champlain to one vessel not ex- ceeding like burthen and armed with like force.
And His Royal Highness agrees that all other armed ves- sels on these Lakes shall be forthwith dismantled, and that no other vessels of war shall be there built or armed.
His Royal Highness further agrees that if either Party
should hereafter be desirous of annulling this stipulation
, and should give notice to that effect to the other Party, it
shall cease to be binding after the expiration of six months
from the date of such notice.
The undersigned has it in command from His Royal Highness the Prince Regent to acquaint the American Gov- ernment, that His Royal Highness has issued orders to His Majesty's officers on the lakes directing that the Naval force so to be limited shall be restricted to such services as will in no respect interfere with the proper duties of the armed vessels of the other Party.
The undersigned has the honour to renew to Mr. Rush the assurances of his highest consideration.
Charles Bagot.
Mr. Rush to Mr. Bagot.
Department of State,
April 29th, 1817.
The undersigned acting Secretary of State has the honor ^ to acknowledge the receipt of Mr. Bagot's note of the 28th ' of this month informing him that, having laid before the Government of His Britannick Majesty, the correspond- ence which passed last year between the Secretary of State and himself upon the subject of a proposal to reduce the naval force of the two countries upon the American Lakes, he had received the commands of His Royal Highness The Prince Regent to inform this Government that His Royal Highness was willing to accede to the proposition made by the Secretary of State in his note of the second of August last.
The undersigned has the honor to express to Mr. Bagot the satisfaction which the President feels at His Royal
AMERICAN HISTORICAL DOCUMENTS 2S5
Highness The Prince Regent's having acceded to the propo- sition of this Government as contained in the note alluded to. And in further answer to Mr. Bagofs note, the un- dersigned by direction of the President, has the honor to state, that this Government, cherishing the same sentiments expressed in the note of the second of August, agrees, that the naval force to be maintained upon the Lakes of the United States and Great Britain shall henceforth, be con- fined to the following vessels on each side — that is:
On Lake Ontario to one vessel not exceeding One Hun- dred Tons burden and armed with an eighteen pound can- non. On the Upper Lakes to two vessels not exceeding the like burden each, and armed with like force, and on the waters of Lake Champlain to one vessel not exceeding like burden and armed with like force.
And it agrees that all other armed vessels on these Lakes, shall be forthwith dismantled, and that no other vessels of war shall be there built or armed. And it further agrees, that if either party should hereafter be desirous of annull- ing this stipulation and should give notice to that effect to the other party, it shall cease to be binding after the ex- piration of six months from the date of such notice.
The undersigned is also directed by The President to state, that proper orders will be forthwith issued by this Government to restrict the naval force thus limited to such services as will in no respect interfere with the proper duties of the armed vessels of the other party.
The undersigned eagerly avails himself of this opportu- nity to tender to Mr. Bagot the assurances of his distin- guished consideration and respect.
Richard Rush.
TREATY WITH SPAIN (1819)
[While in the hands of Spain, Florida was the source of much annoyance to the Southern States. Fugitive slaves took refuge there ; the white population was largely of a lawless character; and the Seminole Indians often made incursions into Georgia. After the United States had been forced to invade the territory and take possession of part of it, Spain ceded it by the treaty of 1819.]
Treaty of Amity, Settlement, and Limits between the United States of America and His Catholic Maj- esty, Concluded at Washington February 22, 1819; Ratification Advised by Senate February 24, 1819; Ratified by President; Ratified by the King of Spain October 24, 1820; Ratification Again Advised by Senate February 19, 1821 ; Ratified by President February 22, 1821; Ratifications Exchanged at . Washington February 22^ 1821 ; Proclaimed Febru- ary 22, 1821.
THE United States of America and His Catholic Maj- esty, desiring to consolidate, on a permanent basis, the friendship and good correspondence which happily pre- vails between the two parties have determined to settle and terminate all their differences and pretensions, by a treaty, which shall designate, with precision, the limits of their re- spective bordering territories in North America.
With this intention the President of the United States has furnished with their full powers John Quincy Adams, Secre- tary of State of the said United States; and His Catholic Majesty has appointed the Most Excellent Lord Don Luis De Onis, Gonzales, Lopez y Vara, Lord of the town of Rayaces, Perpetual Regidor of the Corporation of the city of Salamanca, Knight Grand Cross of the Royal American Order of Isabella the Catholic, decorated with the Lys of La Vendee, Knight Pensioner of the Royal and Distin-
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AMERICAN HISTORICAL DOCUMENTS 9«s
guished Spanish Order of Charles the Third, Member of the Supreme Assembly of the said Royal Order; of the Council of His Majesty; His Secretary, with Exercise of Decrees, and His Envoy Extraordinary and Minister Pleni- potentiary near the United States of America;
And the said Plenipotentiaries, after having exchanged their powers, have agreed upon and concluded the following articles ;
Article I
There shall be a firm and inviolable peace and sincere friendship between the United States and their citizens and His Catholic Majesty, his successors and subjects, without exception of persons or places.
Article II
His Catholic Majesty cedes to the United States, ir full property and sovereignty, all the territories which beiong to him, situated to the eastward of the Mississippi^ known by the name of East and West Florida. The adjacent islands dependent on said provinces, all public lots and squares, vacant lands, public edifices, fortifications, barracks, and other buildings, which are not private property, archives and documents, which relate directly to the property and sover- eignty of said provinces, af*e included in this article. The said archives and docuAients shall be left in possession of the commissaries or officers of the United States, duly au- K thorized to receive them.
Article III
The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Nachitoches, or Red River; then following the course of the Rio Roxo westward, to the degree of longitude loo west from London and 23 from Washing-
288 AMERICAN HISTORICAL DOCUMENTS
ton; then, crossing the said Red River, and running thence by a line due north, to the river Arkansas ; thence, following the course of the southern bank of the Arkansas, to its source, in latitude 42 north; and thence, by that parallel of latitude, to the South Sea. The whole being as laid down in Melish's map of the United States, published at Phila- delphia, improved to the first of January, 1818. But if the source of the Arkansas River shall be found to fall north or south of latitude 42, then the line shall run from the said source due south or north, as the case may be, till it meets the said parallel of latitude 42, and thence, along the said parallel, to the South Sea: All the islands in the Sabine, and the said Red and Arkansas Rivers, throughout the course thus described, to belong to the United States; but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.
The two high contracting parties agree to cede and renounce all their rights, claims, and pretensions, to the terri- tories described by the said line, that is to say: The United States hereby to His Catholic Majesty, and renounce forever, all their rights, claims, and pretensions, to the territories lying west and south of the above-described line; and, in like manner. His Catholic Majesty cedes to the said United States all his rights, claims, and pretensions to any territories east and north of the said line, and for himself, his heirs, and successors, renounces all claim to the said territories forever.
Article IV
To fix this line with more precision, and to place the land- marks which shall designate exactly the limits of both nations, each of the contracting parties shall appoint a Commissioner and a surveyor, who shall meet before the termination of one year from the date of the ratification of this treaty at Nachitoches, on the Red River, and proceed to run and mark the said line, from the mouth of the Sabine to the Red River, and from the Red River to the river Arkan-
1
AM:^ICAN historical documents 289
sas, and to ascertain the latitude of the source of the said river Arkansas, in conformity to what is above agreed upon and stipulated, and the line of latitude 42, to the South Sea: they shall make out plans, and keep journals of their proceedings, and the result agreed upon by them shall be considered as part of this treaty, and shall have the same force as if it were inserted therein. The two Governments will amicably agree respecting the necessary articles to be furnished to those persons, and also as to their respective escorts, should such be deemed necessary.
Article V
The inhabitants of the ceded territories shall be secured in the free exercise of their religion, without any restriction ; and all those who may desire to remove to the Spanish dominions shall be permitted to sell or export their effects, at any time whatever, without being subject, in either case, to duties.
Article VI
The inhabitants of the territories which His Catholic Majesty cedes to the United States, by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States.
Article VII
The officers and troops of His Catholic Majesty, in the territories hereby ceded by him to the United States, shall be withdrawn, and possession of the places occupied by them shall be given within six months after the exchange of the ratifications of this treaty, or sooner if possible, by the officers of His Catholic Majesty to the commissioners or officers of the United States duly appointed to receive them; and the United States shall furnish the transports and escorts necessary to convey the Spanish officers and troops and their baggage to the Havana.
HC XLUI (10)
290 AMERICAN HISTORICAL DOCUMENTS
Artici-e yiii
All the grants of land made before the 24th of January^ 1818, by His Catholic Majesty, or by his lawful authorities, in the said territories ceded by His Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty. But the owners in possession of such lands, who, by reason of the recent cir- cumstances of the Spanish nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the terms limited in the same, respectively, from the date of this treaty; in default of which the said grants shall be null and void. All grants made since the said 24th of January, 1818, when the first proposal, on the part of His Catholic Majesty, for the cession of the Floridas was made^ are hereby declared and agreed to be null and void
ARncLBlX
The two high contracting parties, animated with the most earnest desire of conciliation, and with the object of putting an end to all the differences which have existed between them, and of confirming the good understanding which they wish to be forever maintained between them, reciprocally renounce all claims for damages or injuries which they, themselves, as well as their respective citizens and subjects, may have suffered until the time of signing this treaty.
The renunciation of the United States will extend to all the injuries mentioned in the convention of the nth of August, 1802.
(2) To all claims on account of prizes made by French privateers, and condemned by French Consuls, within the territory and jurisdiction of Spain.
(3) To all claims of indemnities on account of the sus- paision of the right of deposit at New Orleans in 1802.
(4) To all claims of citizens of the United States upon the Government of Spain, arising from the unlawful seiz-
AMERICAN HISTORICAL DOCUMENTS 291
ures at sea, and in the ports and territories of Spain, or the Spanish colonies.
(5) To all claims of citizens of the United States upon the Spanish Government, statements of which, solicit- ing the interposition of the Government of the United States, have been presented to the Department of State, or to the Minister of the United States in Spain, since the date of the convention of 1802, and until the signature of this treaty. The renunciation of His Catholic Majesty extends — (i) To all the injuries mentioned in the convention of the nth of August, 1802.
(2) To the sums which His Catholic Majesty advanced for the return of Captain Pike from the Provincias Intemas.
(3) To all injuries caused by the expedition of Miranda, that was fitted out and equipped at New York.
(4) To all claims of Spanish subjects upon the Govern- ment of the United States arizing from unlawful seizures at sea, or within the ports and territorial jurisdiction of the United States.
Finally to all the claims of subjects of His Catholic Majesty upon the Government of the United States in which the interposition of his Catholic Majesty's Government has been solicited, before the date of this treaty and since the date of the convention of 1802, or which may have been made to the department of foreign affairs of His Majesty, or to His Minister in the United States.
And the high contracting parties, respectively, renounce all claim to indemnities for any of the recent events or transactions of their respective commanders and officers in the Floridas.
The United States will cause satisfaction to be made for the injuries, if any, which, by process of law, shall be estab- lished to have been suffered by the Spanish officers, and individual Spanish inhabitants, by the late operations of the American Army in Florida.
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Article X
The convention entered into between the two Governments, on the nth of August, 1802, the ratifications of which were exchanged the 21st December, 18 18, is annulled.
Article XI
The United States, exonerating Spain from all demands in future, on account of the claims of their citizens to which the renunciations herein contained extend, and considering them entirely cancelled, undertake to make satisfaction for the same, to an amount not exceeding five millions of dollars. To ascertain the full amount and validity of those claims, a commission, to consist of three Commissioners, citizens of the United States, shall be appointed by the President, by and with the advice and consent of the Senate, which com- mission shall meet at the city of Washington, and, within the space of three years from the time of their first meeting, shall receive, examine, and decide upon the amount and validity of all the claims included within the descriptions above mentioned. The said Commissioners shall take an oath or affirmation, to be entered on the record of their pro- ceedings, for the faithful and diligent discharge of their duties; and, in case of the death, sickness, or necessary ab- sence of any such Commissioner, his place may be supplied by the appointment, as aforesaid, or by the President of the United States, during the recess of the Senate, of another Commissioner in his stead. The said Commissioners shall be authorized to hear and examine, on oath, every question relative to the said claims, and to receive all suitable authen- tic testimony concerning the same. And the Spanish Gov- ernment shall furnish all such documents and elucida- tions as may be in their possession, for the adjustment of the said claims, according to the principles of justice, the laws of nations, and the stipulations of the treaty between the two parties of 27th October, 1795; the said documents to be specified, when demanded, at the instance of the said Commissioners.
The payment of such claims as may be admitted and
AMERICAN HISTORICAL DOCUMENTS 293
adjusted by the said Commissioners, or the major part of them, to an amount not exceeding five millions of dollars, shall be made by the United States, either immediately at their Treasury, or by the creation of stock, bearing an interest of six per cent, per annum, payable from the pro- ceeds of sales of public lands within the territories hereby ceded to the United States, or in such other manner as the Congress of the United States may prescribe by law.
The records of the proceedings of the said Commissioners, together with the vouchers and documents produced before them, relative to the claims to be adjusted and decided upon by them, shall, after the close of their transactions, be deposited in the Department of State of the United States; and copies of them, or any part of them, shall be furnished to the Spanish Government, if required, at the demand of the Spanish Minister in the United States.
Article XII
The treaty of limits and navigation, of 1795, remains confirmed in all and each one of its articles excepting the 2, 3, 4, 21, and the second clause of the 22d article, which having been altered by this treaty, or having received their entire execution, are no longer valid.
With respect to the 15th article of the same treaty of friendship, limits, and navigation of 1795, in which it is stipulated that the flag shall cover the property, the two high contracting parties agree that this shall be so under- stood with respect to those Powers who recognize this prin- ciple; but if either of the two contracting parties shall be at war with a third party, and the other neutral, the flag of the neutral shall cover the property of enemies whose Government acknowledge this principle, and not of others.
Article XIII
Both contracting parties, wishing to favour their mutual commerce, by affording in their ports every necessary assist- ance to their respective merchant-vessels, have agreed that the sailors who shall desert from their vessels in the ports
294 AMERICAN HISTORICAL DOCUMENTS
of the other, shall be arrested and delivered up, at the instance of the Consul, who shall prove, nevertheless, that the deserters belonged to the vessels that claimed them, exhibiting the document that is customary in their nation: that is to say, the American Consul in a Spanish port shall exhibit the document known by the name of articles, and the Spanish Consul in American ports the roll of the vessel ; and if the name of the deserter or deserters who are claimed shall appear in the one or the other, they shall be arrested, held in custody, and delivered to the vessel to which they shall belong.
Article XIV
The United States hereby certify that they have not received any compensation from France for the injuries they suffered from her privateers. Consuls, and tribunals on the coasts and in the ports of Spain, for the satisfaction of which provision is made by this treaty; and they will present an authentic statement of the prizes made, and of their true value, that Spain may avail herself of the same in such manner as she may deem just and proper.
Article XV
The United States, to give to His Catholic Majesty a proof of their desire to cement the relations of amity sub- sisting between the two nations, and to favour the commerce of the subjects of His Catholic Majesty, agree that Spanish vessels, coming laden only with productions of Spanish growth or manufactures, directly from the ports of Spain, or of her colonies, shall be admitted, for the term of twelve years, to the ports of Pensacola and St. Augustine, in the Floridas, without paying other or higher duties on their cargoes, or of tonnage, than will be paid by the vessels of the United States. During the said term no other nation shall enjoy the same privileges within the ceded territories. The twelve years shall commence three months after the exchange of the ratifications of this treaty.
AMERICAN HISTORICAL DOCUMENTS 295
Article XVI
The present treaty shall be ratified in due form, by the contracting parties, and the ratifications shall be exchanged in six months from this time, or sooner if possible.
In witness whereof we, the underwritten Plenipotentiaries of the United States of America and of His Catholic Maj- esty, have signed, by virtue of our powers, the present treaty of amity, settlement, and limits, and have thereunto affixed our seals, respectively.
Done at Washington this twenty-second day of February, one thousand eight hundred and nineteen.
John Quincy Adams [l. s.] Luis de Onis [l. s.]
THE MONROE DOCTRINE
(1823)
[The reaction in favor of monarchical government which followed the fall of Napoleon had among its consequences the proposal of Spain to regain her South American colonies, which had won their independence. Russia also began to extend her claims on the Pacific coast. It was with reference to such tendencies that Presi- dent Monroe included in his message of 1823 this statement of the policy of the United States toward foreign powers attempting " to extend their system to this portion of the hemisphere." This doctrine was not ratified by Congress, and its validity depends, not on international law, but merely on the power of the United States to enforce it.]
AT THE proposal of the Russian imperial government l\ made through the minister of the Emperor residing -^ — ^ here, a full power and instructions have been trans- mitted to the Minister of the United States at St. Peters- burgh, to arrange, by amicable negotiation, the respective rights and interests of the two nations on the northwest coast of this continent. A similar proposal has been made by his Imperial Majesty to the government of Great Britain, which has likewise been acceded to. The government of the United States has been desirous, by this friendly proceed- ing, of manifesting the great value which they have in- variably attached to the friendship of the emperor, and their solicitude to cultivate the best understanding with his government. In the discussions to which this interest has given rise, and in the arrangements by which they may terminate, the occasion has been judged proper for assert- ing, as a principle in which the rights and interests of the United States are involved, that the American continents, by the free and independent condition which they have as- sumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers.
*********
It was stated at the commencement of the last session,
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AMERICAN HISTORICAL DOCUMENTS 29?
that a great effort was then making in Spain and Portugal, to improve the condition of the people of those countries, and that it appeared to be conducted with extraordinary moderation. It need scarcely be remarked, that the result has been, so far, very different from what was then antici- pated. Of events in that quarter of the globe, with which we have so much intercourse, and from which we derive our origin, we have always been anxious and interested spec- tators. The citizens of the United States cherish senti- ments the most friendly, in favor of the liberty and happi- ness of their fellow men on that side of the Atlantic. In the wars of the European powers, in matters relating to themselves, we have never taken any part, nor does it com- port with our policy so to do. It is only when our rights are invaded, or seriously menaced, that we resent injuries, or make preparation for our defence. With the move- ments in this hemisphere, we are, of necessity, more im- mediately connected, and by causes which must be obvious to all enlightened and impartial observers. The political system of the allied powers is essentially different, in this respect, from that of America. This difference proceeds from that which exists in their respective governments. And to the defence of our own, which has been achieved by the loss of so much blood and treasure, and matured by the wisdom of their most enlightened citizens, and under which we have enjoyed unexampled felicity, this whole na- tion is devoted. We owe it, therefore, to candor, and to the amicable relations existing between the United States and those powers, to declare, that we should consider any attempt on their part to extend their system to any portion of this hemisphere, as dangerous to our peace and safety. With the existing colonies or dependencies of any European power, we have not interfered, and shall not interfere. But with the governments who have declared their independence, and maintained it, and whose independence we have, on great consideration, and on just principles, acknowledged, we could not view any interposition for the purpose of oppressing them, or controlling, in any other manner, their destiny, by any European power, in any other light than as the manifestation of an unfriendly disposition towards
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the United States. In the war between those new govern- ments and Spain, we declared our neutrality at the time of their recognition, and to this we have adhered, and shall continue to adhere, provided no change shall occur, which, in the judgment of the competent authorities of this gov- ernment, shall make a corresponding change, on the part of the United States, indispensable to their security.
The late events in Spain and Portugal, shew that Europe IS still unsettled. Of this important fact, no stronger proof can be adduced than that the eiilied powers should have thought it proper, on any principle satisfactory to them- selves, to have interposed, by force, in the internal concerns of Spain. To what extent such interposition may be car- ried, on the same principle, is a question, to which all independent powers, whose governments differ from theirs, are interested; even those most remote, and surely none more so than the United States. Our policy, in regard to Europe, which was adopted at an early stage of the wars which have so long agitated that quarter of the globe, nevertheless remains the same, which is, not to interfere in the internal concerns of any of its powers; to consider the government de facto as the legitimate government for us; to cultivate friendly relations with it, and to preserve those relations by a frank, firm, and manly policy; meet- ing, in all instances, the just claims of every power; sub- mitting to injuries from none. But, in regard to these continents, circumstances are eminently and conspicuously different. It is impossible that the allied powers should extend their political system to any portion of either con- tinent, without endangering our peace and happiness: nor can any one believe that our Southern Brethren, if left to themselves, would adopt it of their own accord. It is equally impossible, therefore, that we should behold such interposition, in any form, with indifference. If we look to the comparative strength and resources of Spain and those new governments, and their distance from each other, it must be obvious that she can never subdue them. It is still the true policy of the United States to leave the parties to themselves, in the hope that other powers will pursue the same course.
I
TREATY
WITH GREAT BRITAIN (1842)
[The purpose of the Webster-Ashburton treaty was to settle various outstanding questions between Great Britain and the United States, mainly concerned with boundary-lines. With the exception of the Oregon line, most of the frontier between Canada and the United States was defined by this agreement. The boundary west of the Rocky Mountains was decided in 1846.]
Treaty between the United States of America and Her Britannic Majesty Relative to Boundaries, Sup- pression OF THE Slave-Trade, and Extradition of Criminals, Concluded at Washington August 9, 1842; Ratification Advised by Senate August 20, 1842; Ratified by President August 22, 1842; Ratifi- cations Exchanged at London October 13, 1842; Proclaimed November 10, 1842.
WHEREAS certain portions of the line of boundary between the United States of America and the Brit- ish dominions in North America, described in the second article of the treaty of peace of 1783, have not yet been ascertained and determined, notwithstanding the repeated attempts which have been heretofore made for that purpose ; and whereas it is now thought to be for the interest of both parties, that, avoiding further discussion of their respective rights, arising in this respect under the said treaty, they should agree on a conventional line in said portions of the said boundary, such as may be convenient to both parties, with such equivalents and compensations as are deemed just and reasonable; and whereas, by the treaty concluded at Ghent on the 24th day of December, 1814, between the United States and His Britannic Majesty, an article was agreed to and inserted of the following tenor, viz.: "Art
300 AMERICAN HISTORICAL DOCUMENTS
10. Whereas the traffic in slaves is irreconcilable with the principles of humanity and justice; and whereas both His Majesty and the United States are desirious of continuing their efforts to promote its entire abolition, it is hereby agreed that both the contracting parties shall use their best endeavors to accomplish so desirable an object; " and where- as, notwithstanding the laws which have at various times been passed by the two Governments, and the efforts made to suppress it, that criminal traffic is still prosecuted and carried on; and whereas the United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland are determined that, so far as may be in their power, it shall be effectually abolished; and whereas it is found expedient, for the better adminis- tration of justice and the prevention of crime within the territories and jurisdiction of the two parties respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain cir- cumstances, be reciprocally delivered up: The United States of America and Her Britannic Majesty, having resolved to treat on these several subjects, have for that purpose ap- pointed their respective Plenipotentiaries to negotiate and conclude a treaty, that is to say:
The President of the United States has, on his part, furnished with full powers Daniel Webster, Secretary of State of the United States, and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland has, on her part, appointed the Right Honorable Alexander Lord Ashburton, a peer of the said United Kingdom, a member of Her Majesty's Most Honorable Privy Council, and Her Majesty's Minister Plenipotentiary on a special mission to the United States;
Who, after a reciprocal communication of their respec- tive full powers, have agreed to and signed the following articles :
Article I
It is hereby agreed and declared that the line of bound- ary shall be as follows: Beginning at the monument at the source of the river St. Croix as designated and agreed
AMERICAN HISTORICAL DOCUMENTS 301
to by the Commissioners under the fifth article of the treaty of 1794, between the Governments of the United States and Great Britain; thence, north, following the exploring line run and marked by the surveyors of the two Govern- ments in the years 1817 and 1818, under the fifth article of the treaty of Ghent, to its intersection with the river St. John, and to the middle of the channel thereof; thence, up the middle of the main channel of the said river St. John, to the mouth of the river St. Francis; thence, up the middle of the channel of the said river St. Francis, and of the lakes through which it flows, to the outlet of the Lake Pohenagamook ; thence, southwesterly, in a straight line, to a point on the northwest branch of the river St. John, which point shall be ten miles distant from the main branch of the St. John, in a straight line, and in the nearest di- rection; but if the said point shall be found to be less than seven miles from the nearest point of the summit or crest of the highlands that divide those rivers which empty themselves into the river Saint Lawrence from those which fall into the river Saint John, then the said point shall be made to recede down the said northwest branch of the river St. John, to a point seven miles in a straight line from the said summit or crest; thence, in a straight line, in a course about south, eight degrees west, to the point where the parallel of latitude of 46° 25' north intersects the south- west branch of the St. John*s; thence, southerly, by the said branch, to the source thereof in the highlands at the Metjarmette portage; thence, down along the said high- lands which divide the waters which empty themselves into the river Saint Lawrence from those which fall into the Atlantic Ocean, to the head of Hall's Stream; thence, down the middle of said stream, till the line thus run intersects the old line of boundary surveyed and marked by Valentine and Collins, previously to the year 1774, as the 45th degree of north latitude, and which has been known and understood to be the line of actual division between the States of New York and Vermont on one side, and the British province of Canada on the other; and from said point of intersection, west, along the said dividing line, as heretofore known and understood, to the Iroquois or St. Lawrence River,
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Articxe II
It IS moreover agreed, that from the place where the joint Commissioners terminated their labors under the sixth article of the treaty of Ghent, to wit, at a point in the Neebish Channel, near Muddy Lake, the line shall run into and along the ship-channel between Saint Joseph and St Tammany Islands, to the division of the channel at or near the head of St. Joseph's Island; thence, turning eastwardly and northwardly around the lower end of St George's or Sugar Island, and following the middle of the channel which divides St George's from St Joseph's Island; thence up the east Neebish Channel, nearest to St. George's Island, through the middle of Lake George; thence, west of Jonas* Island, into St. Mary's River, to a point in the middle of that river, about one mile above St George's or Sugar Island, so as to appropriate and assign the said island to the United States; thence, adopting the line traced on the maps by the Commissioners, thro' the river St Mary and Lake Superior, to a point north of He Royale, in said lake, one hundred yards to the north and east of He Chapeau, which last- mentioned island lies near the northeastern point of He Royale, where the line marked by the Commissioners ter- minates; and from the last-mentioned point, southwesterly, through the middle of the sound between He Royale and the northwestern main land, to the mouth of Pigeon River, and up the said river, to and through the north and south Fowl Lakes, to the lakes of the height of land between Lake Superior and the Lake of the Woods; thence, along the water communication to Lake Saisaginaga, and through that lake; thence, to and through Cypress Lake, Lac du Bois Blanc, Lac la Croix, Little Vermilion Lake, and Lake Namecan and through the several smaller lakes, straits, or streams, connecting the lakes here mentioned, to that point in Lac la Pluie, or Rainy Lake, at the Chaudiere Falls, from which the Commissioners traced the line to the most northwestern point of the Lake of the Woods; thence, along the said line, to the said most northwestern point, being in latitude 49° 23' 55" north and in longitude 95° 14' 38" west from the observatory at Greenwich; thence.
AMERICAN HISTORICAL DOCUMENTS 303
according to existing treaties, due south to its intersection with the 49th parallel of north latitude, and along that parallel to the Rocky Mountains. It being understood that all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the citizens and subjects of both countries.
Article III
In order to promote the interests and encourage the in- dustry of all the inhabitants of the countries watered by the river St. John and its tributaries, whether living within the State of Maine or the province of New Brunswick, it is agreed that, where, by the provisions of the present treaty, the river St. John is declared to be the line of boundary, the navigation of the said river shall be free and open to both parties, and shall in no way be obstructed by either; that all the produce of the forest, in logs, lum- ber, timber, boards, staves, or shingles, or of agriculture, not being manufactured, grown on any of those parts of the State of Maine watered by the river St. John, or by its tributaries, of which fact reasonable evidence shall, if required, be produced, shall have free access into and through the said river and its said tributaries, having their source within the State of Maine, to and from the sea-port at the mouth of the said river St. John's, and to and round the falls of the said river, either by boats, rafts, or other conveyance; that when within the province of New Bruns- wick, the said produce shall be dealt with as if it were the produce of the said province; that, in like manner, the in- habitants of the territory of the upper St. John, determined by this treaty to belong to Her Britannic Majesty, shall have free access to and through the river, for their produce, in those parts where the said river runs wholly through the State of Maine; Provided, always, that this agreement shall give no right to either party to interfere with any regula- tions not inconsistent with the terms of this treaty which the governments, respectively, of Maine or of New Bruns-
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wick may make respecting the navigation of the said riverj where both banks thereof shall belong to the same party.
Article IV
All grants of land heretofore made by either party, within the limits of the territory which by this treaty falls within the dominions of the other party, shall be held valid, ratified, and confirmed to the persons in possession under such grants, to the same extent as if such territory had by this treaty fallen within the dominions of the party by whom such grants were made; and all equitable possessory claims, arising from a possession and improvement of any lot or parcel of land by the person actually in possession, or by those under whom such person claims, for more than iix years before the date of this treaty, shall, in like man- ner, be deemed valid, and be confirmed and quieted by a release to the persons entitled thereto, of the title to such lot or parcel of land, so described as best to include the im- provements made thereon; and in all other respects the two contracting parties agree to deal upon the most liberal principles of equity with the settlers actually dwelling upon the territory falling to them, respectively, which has here- tofore been in dispute between them.
Article V
Whereas in the course of the controversy respecting the disputed territory on the northeastern boundary, some moneys have been received by the authorities of Her Bri- tannic Majesty's province of New Brunswick, with the intention of preventing depredations, on the forests of the said territory, which moneys were to be carried to a fund called the " disputed territory fund," the proceeds whereof it was agreed should be hereafter paid over to the parties interested, in the proportions to be determined by a final settlement of boundaries, it is hereby agreed that a correct account of all receipts and payments on the said fund shall be delivered to the Government of the United States within six months after the ratification of this treaty; and the pro-
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portion of the amount due thereon to the States of Maine and Massachusetts, and any bonds or securities appertain- ing thereto shall be paid and delivered over to the Govern- ment of the United States; and the Government of the United States agrees to receive for the use of, and pay over to, the States of Maine and Massachusetts, their re- spective portions of said fund, and further, to pay and satisfy said States, respectively, for all claims for expenses incurred by them in protecting the said heretofore disputed territory and making a survey thereof in 1838; the Gov- ernment of the United States agreeing with the States of Maine and Massachusetts to pay them the further sum of three hundred thousand dollars, in equal moieties, on ac- count of their assent to the line of boundary described in this treaty, and in consideration of the conditions and equivalents received therefor from the Government of Her Britannic Majesty.
Article VI
It is furthermore understood and agreed that, for the purpose of running and tracing those parts of the line be- tween the source of the St. Croix and the St. Lawrence River which will require to be run and ascertained, and for marking the residue of said line by proper monuments on the land, two Commissioners shall be appointed, one by the President of the United States, by and with the advice and consent of the Senate thereof, and one by Her Britannic Majesty; and the said Commissioners shall meet at Bangor, in the State of Maine, on the first day of May next, or as soon thereafter as may be, and shall proceed to mark the line above described, from the source of St. Croix to the river St. John ; and shall trace on proper maps the dividing- line along said river and along the river St. Francis to the outlet of the Lake Pohenagamook ; and from the outlet of the said lake they shall ascertain, fix, and mark, by proper and durable monuments on the land, the line described in the first article of this treaty; and the said Commis- sioners shall make to each of their respective Governments a joint report or declaration, under their hands and seals.
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designating such line of boundary, and shall accompany such report or declaration with maps, certified by them to be true maps of the new boundary.
Article VII
It 19 further agreed that the channels in the river St. Lawrence on both sides of the Long Sault Islands and of Barnhart Island, the channels in the river Detroit on both sides of the island Bois Blanc, and between that Island and both the American and Canadian shores, and all the several channels and passages between the various islands lying near the junction of the river St. Clair with the lake of that name, shall be equally free and open to the ships, vessels, and boats of both parties.
Article VIII
The parties mutually stipulate that each shall prepare, equip, and maintain in service on the coast of Africa a sufficient and adequate squadron or naval force of vessels of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respec- tively, the laws, rights and obligations of each of the two countries for the suppression of the slave-trade, the said squadrons to be independent of each other, but the two Governments stipulating, nevertheless, to give such orders to the officers commanding their respective forces as shall enable them most effectually to act in concert and co-op- eration, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article, copies of all such orders to be communicated by each Govern- ment to the other, respectively.
Article IX
Whereas, notwithstanding all efforts which may be made on the coast of Africa for suppressing the slave-trade, the facilities for carrying on that traffic and avoiding the vigi- lance of cruisers, by the fraudulent use of flags and other
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means, are so great, and the temptations for pursuing it, while a market can be found for slaves, so strong, as that the desired result may be long delayed unless all markets be shut against the purchase of African negroes, the parties to this treaty agree that they will unite in all becoming representations and remonstrances with any and all Powers within whose dominions such markets are allowed to exist, and that they will urge upon all such Powers the propriety and duty of closing such markets effectually, at once and forever.
Article X
It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their Ministers, officers, or authorities, respectively made, de- liver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utter- ance of forged paper, committed within the jurisdiction of either, shall seek an asylum or shall be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commit- ment for trial if the crime or offence had there been com- mitted; and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a war- rant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive au- thority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.
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Article XI
The eighth article of this treaty shall be in force for five years from the date of the exchange of the ratification, and afterwards until one or the other party shall signify a wish to terminate it. The tenth article shall continue in force until one or the other of the parties shall signify its wish to terminate it, and no longer.
Articxe XII
The present treaty shall be duly ratified, and the mutual exchange of ratification shall take place in London, within six months from the date hereof, or earlier if possible.
In faith whereof we, the respective Plenipotentiaries, have signed this treaty and have hereunto affixed our seals.
Done in duplicate at Washington, the ninth day of August, anno Domini one thousand eight hundred and forty-two.
Danl. Webster [l. s.]
ASHBURTON [l. S.]
TREATY WITH MEXICO
(1848)
[By the Louisiana Purchase, Texas had become a part of the United States; but in 181 9 it had been ceded to Spain in the negotiations for Florida. Two years later Mexico, including Texas, had become independent, and the United States made two un- successful attempts to purchase Texas from Mexico. The settlement of Texas by immigrants from the United States finally led to the secession of Texas and its annexation by the United States, with the result that the Mexican War broke out in May, 1846. It was closed by this treaty, by which the United States gained not only Texas but New Mexico and Upper California.]
Treaty of Peace, Friendship, Limits, and Settlement
BETWEEN THE UnITED StATES OF AMERICA AND THE
United Mexican States, Concluded at Guadalupe Hidalgo, February 2, 1848; Ratification Advised by Senate, with Amendments, March 10, 1848; Ratified BY President, March 16, 1848; Ratifications Ex- changed at Queretaro, May 30, 1848; Proclaimed, July 4, 1848.
IN THE name of Almighty God: The United States of America and the United Mexican States animated by a sincere desire to put an end to the calamities of the war which unhappily exists between the two Republics, and to establish upon a solid basis relations of peace and friendship, which shall confer reciprocal bene- fits upon the citizens of both, and assure the concord, har- mony, and mutual confidence wherein the two people should live, as good neighbours, have for that purpose appointed their respective plenipotentiaries, that is to say:
The President of the United States has appointed Nicholas P. Trist, a citizen of the United States, and the President of the Mexican Republic has appointed Don Luis Gonzaga Cuevas, Don Bernardo Couto, and Don Miguel Atristain, citizens of the said Republic;
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Who, after a reciprocal communication of their respective full powers, have, under the protection of Almighty God, the author of peace, arranged, agreed upon, and signed the following:
Treaty of Peace, Friendship, Limits, and Settlement between the United States of America and the Mexican Republic.
Article I
There shall be firm and universal peace between the United States of America and the Mexican Republic, and between their respective countries, territories, cities, towns, and people, without exception of places or persons.
Article II
Immediately upon the signature of this treaty, a conven- tion shall be entered into between a commissioner or com- missoners appointed by the General-in-chief of the forces of the United States, and such as may be appointed by the Mexican government, to the end that a provisional suspen- sion of hostilities shall take place, and that, in the places occupied by the said forces, constitutional order may be re- established, as regards the political, administrative, and judicial branches, so far as this shall be permitted by the circumstances of military occupation.
Article III
Immediately upon the ratification of the present treaty by the Government of the United States, orders shall be transmitted to the commanders of their land and naval forces, requiring the latter (provided this treaty shall then have been ratified by the Government of the Mexican Republic, and the ratifications exchanged) immediately to desist from blockading any Mexican ports and requiring the former (under the same condition) to commence, at the earliest moment practicable, withdrawing all troops of the United States then in the interior of the Mexican Republic,
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to points that shall be selected by common agreement, at a distance from the seaports not exceeding thirty leagues; and such evacuation of the interior of the Republic shall be completed with the least possible delay; the Mexican Government hereby binding itself to afford every facility in its pov^rer for rendering the same convenient to the troops, on their march and in their new positions, and for promoting a good understanding between them and the inhabitants. In like manner orders shall be despatched to the persons in charge of the custom-houses at all ports occupied by the forces of the United States, requiring them (under the same condition) immediately to deliver possession of the same to the persons authorized by the Mexican Government to receive it, together with all bonds and evidences of debt for duties on importations and on exportations, not yet fallen due. Moreover, a faithful and exact account shall be made out, showing the entire amount of all duties on imports and on exports, collected at such custom-houses, or elsewhere in Mexico, by authority of the United States, from and after the day of ratification of this treaty by the Government of the Mexican Republic; and also an account of the cost of collection; and such entire amount, deducting only the cost of collection, shall be delivered to the Mexican Govern- ment, at the city of Mexico, within three months after the exchange of ratifications.
The evacuation of the capital of the Mexican Republic by the troops of the United States, in virtue of the above stipulation, shall be completed in one month after the orders there stipulated for shall have been received by the com- mander of said troops, or sooner if possible.
Article IV
Immediately after the exchange of ratifications of the present treaty all castles, forts, territories, places, and pos- sessions, which have been taken or occupied by the forces of the United States during the present war, within the limits of the Mexican Republic, as about to be established by the following article, shall be definitely restored to the said Republic, together with all the artillery, arms, apparatus
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of war, munitions, and other public property, which were in the said castles and forts when captured, and which shall remain there at the time when this treaty shall be duly ratified by the Government upon the signature of this treaty, this end, immediately upon the signature of this treaty, orders shall be despatched to the American offiecers com- manding such castles and forts, securing against the re- moval or destruction of any such artillery, arms, apparatus of war, munitions, or other public property. The city of Mexico, within the inner line of intrenchments surrounding the said city, is comprehended in the above stipulation, as regards the restoration of artillery, apparatus of war, &c.
The final evacuation of the territory of the Mexican Republic, by the forces of the United States, shall be com- pleted in three months from the said exchange of ratifica- tions, or sooner if possible ; the Hexican Government hereby engaging, as in the foregoing article, to use all means in its power for facilitating such evacuation, and rendering it convenient to the troops, and for promoting a good under- standing between them and the inhabitants.
If, however, the ratification of this treaty by both parties should not take place in time to allow the embarcation of the troops of the United States to be completed before the commencement of the sickly season, at the Mexican ports on the Gulf of Mexico, in such case a friendly arrangement shall be entered into between the General-in-chief of the said troops and the Mexican Government, whereby healthy and otherwise suitable places, at a distance from the ports not exceeding thirty leagues, shall be designated for the residence of such troops as may not yet have embarked, until the return of the healthy season. And the space of time here referred to as comprehending the sickly season shall be understood to extend from the first of May to the first day of November.
All prisoners of war taken on either side, on land or on sea, shall be restored as soon as practicable after the ex- change of ratifications of this treaty. It is also agreed that if any Mexicans should now be held as captives by any savage tribe within the limits of the United States, as about to be established by the following article, the Government
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of the said United States will exact the release of such cap- tives, and cause them to be restored to their country.
Article V
The boundary line between the two Republics shall com- mence in the Gulf of Mexico, three leagues from land, op- posite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not inter- sect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same) ; thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.
The southern and western limits of New Mexico, men- tioned in this article, are those laid down in the map entitled "Map of the United Mexican States, as organised and defined by various acts of the Congress of said republic, and constructed according to the best authorities. Revised edition. Published at New York, in 1847, by J. Disturnell; " of which map a copy is added to this treaty, bearing the signatures and seals of the undersigned Plenipotentiaries. And, in order to preclude all difficulty in tracing upon the ground the limit separating Upper from Lower California, it is agreed that the said limit shall consist of a straight line drawn from the middle of the Rio Gila, where it unites with the Colorado, to a point on the coast of the Pacific Ocean, distant one marine league due south of the southern- most point of the port of San Diego, according to the plan of said port made in the year 1782 by Don Juan Pantoja,
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second sailing-master of the Spanish fleet, and published at Madrid in the year 1802, in the atlas to the voyage of the schooners Sutil and Mexicana ; of which plan a copy is hereunto added, signed and sealed by the respective Pleni- potentiaries.
In order to designate the boundary line with due preci- sion, upon authoritative maps, and to establish upon the ground land-marks which shall show the limits of both republics, as described in the present article, the two Gov- ernments shall each appoint a commissioner and a surveyor, who, before the expiration of one year from the date of the exchange of ratifications of this treaty, shall meet ac the port of San Diego, and proceed to run and mark the said boundary in its whole course to the mouth of the Rio Bravo del Norte. They shall keep journals and make out plans of their operations; and the result agreed upon by them shall be deemed a part of this treaty, and shall have the same force as if it were inserted therein. The two Gov- ernments will amicably agree regarding what may be neces- sary to these persons, and also as to their respective escorts, should such be necessary.
The boundary line established by this article shall be re- ligiously respected by each of the two republics, and no change shall ever be made therein, except by the express tend free consent of both nations, lawfully given by the General Government of each, in conformity with its own constitution.
Article VI
The vessels and citizens of the United States shall, in all time, have a free and uninterrupted passage by the Gulf of California, and by the river Colorado below its con- fluence with the Gila, to and from their possessions situated north of the boundary line defined in the preceding article ; it being understood that this passage is to be by navigating the Gulf of California and the river Colorado, and not by land, without the express consent of the Mexican Govern- ment.
If, by the examinations which may be made, it should be ascertained to be practicable and advantageous to construct
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a road, canal, or railway, which should in whole or in part run upon the river Gila, or upon its right or its left bank, within the space of one marine league from either margin of the river, the governments of both republics will form an agreement regarding its construction, in order that it may serve equally for the use and advantage of both countries.
Article VII
The river Gila, and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico, being, agreeably to the fifth article, divided in the middle between the two republics, the navigation of the Gila and of the Bravo below said boundary shall be free and common to the vessels and citizens of both countries ; and neither shall, without the consent of the other, construct any work tliBt may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation. Nor shall any tax or contribution, under any denomination or title, be levied upon vessels or persons navigating the same, or upon merchandise or effects transported thereon, except in the case of landing upon one of their shores. If, for the purpose of making the said rivers navigable, or for maintaining them in such state, it should be necessary or advantageous to establish any tax or contribution, this shall not be done without the consent of both Governments.
The stipulations contained in the present article shall not impair the territorial rights of either republic within its established limits.
Article VII!
Mexicans now established in territories previously belong- ing to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contri- bution, tax« or charge whatever
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Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said terri- tories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.
In the said territories, property of every kind, now be- longing to Mexicans not established there, shall be invio- lably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.
Article IX
The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the mean time, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.
Article X [Stricken out.]
Article XI
Considering that a great part of the territories, which, vy the present treaty, are to be comprehended for the future within the limits of the United States, is now occupied by
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savage tribes, who will hereafter be under the exclusive con- troul of the Government of the United States, and whoso incursions within the territory of Mexico would be prej- udicial in the extreme, it is solemnly agreed that all such incursions shall be forcibly restrained by the Government of the United States whensoever this may be necessary; and that when they cannot be prevented, they shall be pun- ished by the said Government, and satisfaction for the same shall be exacted — all in the same way, and with equal dili- gence and energy, as if the same incursions were meditated or committed within its own territory, against its own citizens.
It shall not be lawful, under any pretext whatever, for any inhabitant of the United States to purchase or acquire any Mexican, or any foreigner residing in Mexico, who may have been captured by Indians inhabiting the territory of either of the two republics; nor to purchase or acquire horses, mules, cattle, or property of any kind, stolen within Mexican territory by such Indians.
And in the event of any person or persons, captured within Mexican territory by Indians, being carried into the territory of the United States, the Government of the latter engages and binds itself, in the most solemn manner, so soon as it shall know of such captives being within its territory, and shall be able so to do, through the faithful exercise of its influence and power, to rescue them and return them to their country, or deliver them to the agent or representative of the Mexican Government The Mexican authorities will, as far as practicable, give to the Government of the United States notice of such captures; and its agents shall pay the expenses incurred in the maintenance and transmission of the rescued captives ; who, in the mean time, shall be treated with the utmost hospitality by the American authorities at the place where they may be. But if the Government of the United States, before receiving such notice from Mexico, should obtain intelligence, through any other channel, of the existence of Mexican captives within its territory, it will proceed forthwith to effect their release and delivery to the Mexican agent, as above stipulated.
For the purpose of giving to these stipulations the fullest
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possible efficacy, thereby affording the security and redress demanded by their true spirit and intent, the Government of the United States will now and hereafter pass, without un- necessary delay, and always vigilantly enforce, such laws as the nature of the subject may require. And, finally, the sacredness of this obligation shall never be lost sight of by the said Government, when providing for the removal of the Indians from any portion of the said territories, or for its being settled by citizens of the United States; but, on the contrary, special care shall then be taken not to place Its Indian occupants under the necessity of seeking new homes, by committing those invasions which the United States have solemnly obliged themselves to restrain.
Article XII
In consideration of the e::tension acquired by the boun- daries of the United States, as defined in the fifth article of the present treaty, the Government of the United States engages to pay to that of the Mexican Republic the sum of fifteen millions of dollars.
Immediately after the treaty shall have been duly ratified by the Government of the Mexican Republic, the sum of three millions of dollars shall be paid to the said Govern- ment by that of the United States, at the city of Mexico, in the gold or silver coin of Mexico. The remaining twelve millions of dollars shall be paid at the same place, and in the same coin, in annual instalments of three millions of dollars each, together with interest on the same at the rate of six per centum per annum. This interest shall begin to run upon the whole sum of twelve millions from the day of the ratification of the present treaty by the Mexican Govern- ment, and the first of the instalments shall Le paid at the expiration of one year from the same day. Together with each annual instalment, as it falls due, the whole interest accruing on such instalment from the beginning shall also be paid.
Article XIII
The United States engage, moreover, to assume and pay to the claimants all the amounts now due them, and those
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hereafter to become due, by reason of the claims already liquidated and decided against the Mexican Republic, under the conventions between the two republics severally con- cluded on the eleventh day of April, eighteen hundred and thirty-nine, and on the thirtieth day of January, eighteen hundred and forty-three ; so that the Mexican Republic shall be absolutely exempt, for the future, from all expense what- ever on account of the said claims.
Article XIV
The United States do furthermore discharge the Mexican Republic from all claims of cititzens of the United States, not heretofore decided against the Mexican Government, which may have arisen previously to the date of the signa- ture of this treaty; which discharge shall be final and per- petual, whether the said claims be rejected or be allowed by the board of commissioners provided for in the following article, and whatever shall be the total amount of those allowed.
Akticxe XV
The United States, exonerating Mexico from all demands on account of the claims of their citizens mentioned in the preceding article, and considering them entirely and forever cancelled, whatever their amount may be, undertake to make satisfaction for the same, to an amount not exceeding three and one-quarter millions of dollars. To ascertain the valid- ity and amount of those claims, a board of commissioners shall be established by the Government of the United States, whose awards shall be final and conclusive; provided that, in deciding upon the validity of each claim, the board shall be guided and governed by the principles and rules of de- cision prescribed by the first and fifth articles of the un- ratified convention, concluded at the city of Mexico on the twentieth day of November, one thousand eight hundred and forty-three; and in no case shall an award be made in favour of any claim not embraced by these principles and rules.
If, in the opinion of the said board of commissioners
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or of the claimants, any books, records, or documents, in the possession or power of the Government of the Mexican Republic, shall be deemed necessary to the just decision of any claim, the commissioners, or the claimants through them, shall, within such period as Congress may designate, make an application in writing for the same, addressed to the Mexican Minister of Foreign Affairs, to be transmitted by the Secretary of State of the United States; and the Mexican Government engages, at the earliest possible moment after the receipt of such demand, to cause any of the books, records, or documents so specified, which shall be in their possession or power (or authenticated copies or extracts of the same), to be transmitted to the said Secretary of State, who shall immediately deliver them over to the said board of commissioners; provided that no such application shall be made by or at the instance of any claim- ant, until the facts which it is expected to prove by such books, records, or documents, shall have been stated under oath or affirmation.
Article XVT
Each of the contracting parties reserves to itself the en- tire right to fortify whatever point within its territory it may judge proper so to fortify for its security.
Article XVII
The treaty of amity, commerce, and navigation, concluded at the city of Mexico on the fifth day of April, A. D. 1 83 1, between the United States of America and the United Mexican States, except the additional article, and except so far as the stipulations of the said treaty may be incom- patible with any stipulation contained in the present treaty, is hereby revived for the period of eight years from the day of the exchange of ratifications of this treaty, with the same force and virtue as if incorporated therein; it being understood that each of the contracting parties reserves to itself the right, at any time after the said period of eight years shall have expired, to terminate the same by giving one year's notice of such intention to the other party.
A
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Article XVIII
All supplies whatever for troops of the United States in Mexico, arriving at ports in the occupation of such troops previous to the final evacuation thereof, although sub- sequently to the restoration of the custom-houses at such ports, shall be entirely exempt from duties and charges of any kind; the Government of the United States hereby engaging and pledging its faith to establish and vigilantly to enforce, all possible guards for securing the revenue of Mexico, by preventing the importation, under cover of this stipulation, of any articles other than such, both in kind and in quantity, as shall really be v^^anted for the use and consumption of the forces of the United States during the time they may remain in Mexico. To this end it shall be the duty of all officers and agents of the United States to denounce to the Mexican authorities at the respective ports any attempts at a fraudulent abuse of this stipulation, which they may know of, or may have reason to suspect, and to give to such authorities all the aid in their power with regard thereto; and every such attempt, when duly proved and established by sentence of a competent tribunal, shall be punished by the confiscation of the property so attempted to be fraudulently introduced.
Article XIX
With respect to all merchandise, effects, and property whatsoever, imported into ports of Mexico, whilst in the occupation of the forces of the United States, whether by citizens of either republic, or by citizens or subjects of any neutral nation, the following rules shall be observed:
(i) All such merchandise, effects, and property, if im- ported previously to the restoration of the custom-houses to the Mexican authorities, as stipulated for in the third article of this treaty, shall be exempt from confiscation, although the importation of the same be prohibited by the Mexican tariff.
(2) The same perfect exemption shall be enjoyed by all such merchandise, effects, and property, imported sub-
Hc xLiu (11)
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sequently to the restoration of the custom-houses, and previously to the sixty days fixed in the following article for the coming into force of the Mexican tariff at such ports respectively; the said merchandise, effects, and prop- erty being, however, at the time of their importation, sub- ject to the payment of duties, as provided for in the said following article.
(3) All merchandise, effects, and property described in the two rules foregoing shall, during their continuance at the place of importation, and upon their leaving such place for the interior, be exempt from all duty, tax, or imposts of every kind, under whatsoever title or denomination. Nor shall they be there subject to any charge whatsoever upon the sale thereof.
(4) All merchandise, effects, and property, described in the first and second rules, which shall have been removed to any place in the interior whilst such place was in the occupation of the forces of the United States, shall, during their continuance therein, be exempt from all tax upon the sale or consumption thereof, and from every kind of impost or contribution, under whatsoever title or denomination.
(5) But if any merchandise, effects, or property, de- scribed in the first and second rules, shall be removed to any place not occupied at the time by the forces of the United States, they shall, upon their introduction into such place, or upon their sale or consumption there, be subject to the same duties which, under the Mexican laws, they would be required to pay in such cases if they had been imported in time of peace, through the maritime custom- houses, and had there paid the duties conformably with the Mexican tariff.
(6) The owners of all merchandise, effects, or property, described in the first and second rules, and existing in any port of Mexico, shall have the right to reship the same, exempt from all tax, impost, or contribution whatever.
With respect to the metals, or other property, exported from any Mexican port whilst in the occupation of the forces of the United States, and previously to the resto- ration of the custom-house at such port, no person shall be required by the Mexican authorities, whether general or
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state, to pay any tax, duty, or contribution upon any such exportation, or in any manner to account for the same to the said authorities.
Article XX
Through consideration for the interests of commerce generally, it is agreed, that if less than sixty days shou/d elapse between the date of the signature of this treaty and the restoration of the custom-houses, conformably with the stipulation in the third article, in such case all merchan- dise, effects and property whatsoever, arriving at the Mexi- can ports after the restoration of the said custom-houses, and previously to the expiration of sixty days after the day of signature of this treaty, shall be admitted to entry; and no other duties shall be levied thereon than the duties established by the tariff found in force at such custom- houses at the time of the restoration of the same. And to all such merchandise, effects, and property, the rules established by the preceding article shall apply.
ASTICLB XXI
If unhappily any disagreement should hereafter arise between the Governments of the two republics, whether with respect to the interpretation of any stipulation in this treaty, or with respect to any other particular concerning the politi- cal or commercial relations of the two nations, the said Governments, in the name of those nations, do promise to each other that they will endeavour, in the most sincere and earnest manner, to settle the differences so arising, and to preserve the state of peace and friendship in which the two countries are now placing themselves, using, for this end, mutual representations and pacific negotiations. And if, by these means, they should not be enabled to come to an agreement, a resort shall not, on this account, be had to reprisals, aggression, or hostility of any kind, by the one republic against the other, until the Government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighbourship, whether it would not be better that such difference should be settled
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by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case.
Article XXII
If (which is not to be expected, and which God forbid) war should unhappily break out between the two republics, they do now, with a view to such calamity, solemnly pledge themselves to each other and to the world to observe the following rules; absolutely where the nature of the sub- ject permits, and as closely as possible in all cases where such absolute observance shall be impossible:
(i) The merchants of either republic then residing in the other shall be allowed to remain twelve months (for those dwelling in the interior), and six months (for those dwelling at the seaports) to collect their debts and settle their affairs; during which periods they shall enjoy the same protection, and be on the same footing, in all respects, as the citizens or subjects of the most friendly nations; and, at the expiration thereof, or at any time before, they shall have full liberty to depart, carrying off all their effects without molestation or hindrance, conforming therein to the same laws which the citizens or subjects of the most friendly nations are required to conform to. Upon the entrance of the armies of either nation into the territories of the other, women and children, ecclesiastics, scholars of every faculty, cultivators of the earth, merchants, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all persons whose occupa- tions are for the common subsistence and benefit of man- kind, shall be allowed to continue their respective employ- ments, unmolested in their persons. Nor shall their houses or goods be burnt or otherwise destroyed, nor their cattle taken, nor their fields wasted, by the armed force into whose power, by the events of war, they may happen to fall; but if the necessity arise to take anything from them for the use of such armed force, the same shall be paid for at
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an equitable price. All churches, hospitals, schools, colleges, libraries, and other establishments for charitable and benef- icent purposes, shall be respected, and all persons connected with the same protected in the discharge of their duties, and the pursuit of their vocations.
(2) In order that the fate of prisoners of war may be alleviated, all such practices as those of sending them into distant, inclement, or unwholesome districts, or crowding them into close and noxious places, shall be studiously- avoided. They shall not be confined in dungeons, prison- ships, or prisons ; nor be put in irons, or bound, or otherwise restrained in the use of their limbs. The officers shall enjoy liberty on their paroles, within convenient districts, and have comfortable quarters; and the common soldiers shall be dis- posed in cantonments, open and extensive enough for air and exercise, and lodged in barracks as roomy and good as are provided by the party in whose power they are for its own troops. But if any officer shall break his parole by leaving the district so assigned him, or any other prisoner shall escape from the limits of his cantonment, after they shall have been designated to him, such indi- vidual, officer, or other prisoner, shall forfeit so much of the benefit of this article as provides for his liberty on parole or in cantonment. And if any officer so breaking his parole, or any common soldier so escaping from the limits assigned him, shall afterwards be found in arms, previously to his being regularly exchanged, the person so offending shall be dealt with according to the established laws of war. The officers shall be daily furnished, by the party in whose power they are, with as many rations, and of the same arti- cles, as are allowed, either in kind or by commutation, to officers of equal rank in its own army; and all others shall be daily furnished with such ration as is allowed to a common soldier in its own service; the value of all which supplies shall, at the close of the war, or at periods to be agreed upon between the respective commanders, be paid by the other party, on a mutual adjustment of accounts for the subsistence of prisoners; and such accounts shall not be mingled with or set off against any others, nor the balance due on them withheld, as a compensation or reprisal for
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any cause whatever, real or pretended. Each party shall be allowed to keep a commissary of prisoners, appointed by itself, with every cantonment of prisoners, in possession of the other; which commissary shall see the prisoners as often as he pleases; shall be allowed to receive, exempt from all duties or taxes, and to distribute, whatever comforts may be sent to them by their friends; and shall be free to transmit his reports in open letters to the party by whom he is employed.
And it is declared that neither the pretence that war dis- solves all treaties, nor any other whatever, shall be con- sidered as annulling or suspending the solemn covenant contained in this article. On the contrary, the state of war is precisely that for which it is provided ; and, during which, its stipulations are to be as sacredly observed as the most acknowledged obligations under the law of nature or na- tions.
Article XXIII
This treaty shall be ratified by the President of the United States of America, by and with the advice and con- sent of the Senate thereof; and by the President of the Mexican Republic, with the previous approbation of its general Congress; and the ratifications shall be exchanged in the city of Washington, or at the seat of Government of Mexico, in four months from the date of the signature hereof, or sooner if practicable.
In faith whereof we, the respective Plenipotentiaries, have signed this treaty of peace, friendship, limits, and settlement, and have hereunto affixed our seals respectively. Done in quintuplicate, at the city of Guadalupe Hidalgo, on the second day of February, in the year of our Lord one thousand eight hundred and forty-eight.
N. P. Trist [l. s.]
Luis P. Cuevas [l. s.]
Bern ADO Couto [l. s.]
MiGL. Atristain [l. s.]
FUGITIVE SLAVE ACT
(«85o)
[The Fugitive Sljlve Act was part of the group of measures known collectively as the " Compromise of 1850." By this compromise, the anti-slavery party gained the admission of California as a free state, and the prohibition of slave-trading in the District of Colum- bia. The slavery party, on the other hand, besides concessions with regard to Texas, gained this act, which, however, by its stringency did much to rouse abolitionist sentiment in the North.]
T^E IT enacted by the Senate and House of Representa- h\ tives of the United States of America in Congress cts- semhled. That the persons who have been, or may here- after be, appointed commissioners, in virtue of any act of Congress, by the Circuit Courts of the United States, and Who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace, or other magistrate of any of the United States, may exercise in re- spect to offenders for any crime or offense against the United States, by arresting, imprisoning, or bailing the same under and by the virtue of the thirty-third section of the act of the twenty-fourth of September seventeen hundred and eighty- nine, entitled "An Act to establish the judicial courts of the United States " shall be, and are hereby, authorized and required to exercise and discharge all the powers and duties conferred by this act.
Sec. 2. And he it further enacted, That the Superior Court of each organized Territory of the United States shall have the sartie power to appoint commissioners to take acknowledgments of ball and affidavits, and to take depo- sitions of witnesses in civil causes, which is now possessed by the Circuit Court of the United States; and all com- missioners who shall hereafter be appointed for such pur- poses by the Superior Court of any organized Territory of the United States, shall possess all the powers, and exercise all the duties, conferred by law upon the commissioners
327
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appointed by the Circuit Courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act.
Sect. 3. And be it further enacted, That the Circuit Courts of the United States shall from time to time enlarge the number of the commissioners, with a view to afford rea- sonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.
Sec. 4. And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective circuits and districts within the several States, and the judges of the Superior Courts of the Territories, severally and collectively, in term-time and vacation; shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.
Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and exe- cute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant, or other proc- ess, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of such claimant, on the motion of such claimant, by the Circuit or District Court for the district of such marshal; and after arrest of such fugitive, by such marshal or his deputy, or whilst at any time in his custody under the pro- visions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or District whence he escaped: and the better to enable the said commissioners, when thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the Constitution of the United States and
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of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; with authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to ensure a faithful observance of the clause of the Consti- tution referred to, in conformity with the provisions of this act; and all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose; and said warrants shall run, and be executed by said officers, any where in the State within which they are issued.
Sec. 6. And be it further enacted, That when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pur- sue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commis- sioners aforesaid, of the proper circuit, district, or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, where the same can be done without process, and by taking, or causing such person to be taken, forthwith before such court, judge, or commissioner, whose duty it shall be to hear and de- termine the case of such claimant in a summary manner; and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer
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an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose ser- vice or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Terri- tory from which such fugitive may have escaped as afore- said, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which he or she was ' arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as afore- said. In no trial or hearing under this act shall the testi- mony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section men- tioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.
Sec. 7. And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent , such claimant, his agent or attorney, or any person or per- \ sons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or
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shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as afore- said, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.
Sec. 8. And be if further enacted. That the marshals, their deputies, and the clerks of the said District and Terri- torial Courts, shall be paid, for their services, the like fees as may be allowed for similar services in other cases; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in whole by such claimant, his or her agent or attorney; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certifi- cate to the claimant, his agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examin- ation, to be paid, in either case, by the claimant, his or her agent or attorney. The person or persons authorized to execute the process to be issued by such commissioner for
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the arrest and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five dollars each for each person he or they may arrest and take before any commissioner as aforesaid, at the instance and request of such claimant, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them; such as attending at the examination, keeping the fugitive in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioners; and, in general, for performing such other duties as may be required by such claimant, his or her attorney or agent, or commissioner in the premises, such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid by such claimants, their agents or attorneys, whether such supposed fugitives from service or labor be ordered to be delivered to such claimant by the final deter- mination of such commissioner or not.
Sec. 9. And be it further enacted, That, upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugi- tive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent, or attorney. And to this end, the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary to overcome such force, and to retain them in his service so long as circumstances may require. The said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses, as are now allowed by law for transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treas- ury of the United States.
Sec. 10. And be it further enacted. That when any per«
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son held to service or labor in any State or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape afore- said, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matters so proved, and also a general description of the person so escaping, with such con- venient certainty as may be ; and a transcript of such record, authenticated by the attestation of the clerk and of the seal of the said court, being produced in any other State, Territory, or district in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorized by the law of the United States to cause persons escaping from service or labor to be deliv- ered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned. And upon the production by the said party of other and further evidence if necessary, either oral or by affidavit, in addition to what is contained in the said rec- ord of the identity of the person escaping, he or she shall be delivered up to the claimant. And the said court, com- missioner, judge, or other person authorized by this act to grant certificates to claimants or fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped: Provided, That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid. But in its absence the claim shall be heard and determined upon other satisfactory proofs, competent in law. Approved, September i8, 1850.
LINCOLN'S FIRST INAUGURAL ADDRESS
(1861)
[The platform on which Abraham Lincoln was elected President is sufficiently indicated in his inaugural address. But between the date of his election on that platform and his inauguration, seven Southern States had seceded from the Union, formed a provisional government, and seized most of the forts, etc., belonging to the United States within the seceding territory. It was this situation that Lincoln faced as he took up the task of government]
iniELLOW-CITIZENS of the United States: In compli- Ji ance with a custom as old as the Government itself, I appear before you to address you briefly, and to take in your presence the oath prescribed by the Constitution of the United States to be taken by the President " before he enters on the execution of his office."
I do not consider it necessary at present for me to discuss those matters of administration about which there is no special anxiety or excitement.
Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Ad- ministration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." Those who nominated and elected me did so with full knowledge that I had made this and many
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similar declarations, and had never recanted them. And, more than this, they placed in the platform for my accept- ance, and as a law to themselves and to me, the clear and emphatic resolution which I now read:
'^ Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our polit- ical fabric depend, and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter under what pretext, as among the gravest of crimes."
I now reiterate these sentiments; and, in doing so, I only press upon the public attention the most conclusive evidence of which the case is susceptible, that the property, peace, and security of no section are to be in any wise endangered by the now incoming Administration. I add, too, that all the protection which, consistently with the Constitution and the laws, can be given, will be cheerfully given to all the States when lawfully demanded, for whatever cause — as cheerfully to one section, as to another.
There is much controversy about the delivering up of fugitives from service or labor. The clause I now read is as plainly written in the Constitution as any other of its provisions :
" No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves ; and the intention of the lawgiver is the law. All Members of Congress swear their support to the whole Constitution — to this provision as much as to any other. To the proposition, then, that slaves whose cases come within the terms of this clause, " shall be delivered up," their oaths are unanimous. Now, if they would make the effort in good temper, could they not with nearly equal unanimity frame
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and pass a law by means of which to keep good that unan* imous oath ?
There is some difference of opinion whether this clause should be enforced by national or by State authority; but surely that difference is not a very material one. If the slave is to be surrendered, it can be of but little consequence to him, or to others, by which authority it is done. And should any one, in any case, be content that his oath shall go unkept, on a merely unsubstantial controversy as to how it shall be kept?
Again, in any law upon this subject, ought not all the safeguards of liberty known in civilized and humane juris- prudence to be introduced so that a free man be not, in any case, surrendered as a slave ? And might it not be well at the same time to provide by law for the enforcement of that clause in the Constitution which guarantees that " the citizen of each State shall be entitled to all privileges and immunities of citizens in the several States " ?
I take the official oath to-day with no mental reservations and with no purpose to construe the Constitution or laws by any hypercritical rules. And while I do not choose now to specify particular acts of Congress as proper to be en- forced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed, than to violate any of them trusting to find impunity in having them held to be unconstitutional.
It is seventy-two years since the first inauguration of a President under our National Constitution. During that period fifteen different and greatly distinguished citizens have, in succession, administered the Executive branch of the Government. They have conducted it through many perils, and generally with great success. Yet, with all this scope of precedent, I now enter upon the same task for the brief constitutional term of four years under great and peculiar difficulty. A disruption of the Federal Union, here- tofore only menaced, is now formidably attempted.
I hold that, in contemplation of universal law and of the Constitution, the Union of these States is perpetual. Per- petuity is implied, if not expressed, in the fundamental law
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of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever — it being impossible to destroy it except by some action not provided for in the instrument itself.
Again, if the United States be not a Government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it — break it, so to speak, but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that, in legal contemplation, the Union is per- petual, confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was, " to form a more perfect Union"
But if the destruction of the Union by one, or by a part only, of the States be lawfuly possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union; that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revo- lutionary, according to circumstances.
I therefore consider that, in view of the Constitution and the laws, the Union is unbroken; and to the extent of my ability I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all of the States. Doing this I deem to be only a simple duty on my part; and I shall perform it, so far
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as practicable, unless my rightful masters, the American people, shall withhold the requisite means, or in some au- thoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared pur- pose of the Union that it will constitutionally defend and maintain itself.
In doing this there needs to be no bloodshed or violence; and there shall be none, unless it be forced upon the national authority. The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government, and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States, in any interior locality, shall be so great and universal as to prevent competent resident citizens from holding the Fed- eral offices, there will be no attempt to force obnoxious strangers among the people for that object. While the strict legal right may exist in the Government to enforce the exercise of these offices, the attempt to do so would be so irritating, and so nearly impracticable withal, that I deem it better to forego for the time the uses of such offices.
The mails, unless repelled, will continue to be furnished in all parts of the Union. So far as possible, the people everywhere shall have that sense of perfect security which is most favorable to calm thought and reflection. The course here indicated will be followed unless current events and experience shall show a modification or change to be proper, and in every case and exigency my best discretion will be exercised according to circumstances actually exist- ing, and with a view and a hope of a peaceful solution of the national troubles, and the restoration of fraternal sym- pathies and aflFections.
That there are persons in one section or another who seek to destroy the Union at all events, and are glad of any pretext to do it, I will neither affirm nor deny; but if there be such, I need address no word to them. To those, however, who really love the Union may I not speak ?
Before entering upon so grave a matter as the destruc- tion of our national fabric, with all its benefits, its memories,
I
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and its hopes, would it not be wise to ascertain precisely why we do it? Will you hazard so desperate a step while there is any possibility that any portion of the ills you fly from have no real existence? Will you, while the certain ills you fly to are greater than all the real ones you fly from— will you risk the commission of so fearful a mistake?
All profess to be content in the Union, if all constitu- tional rights can be maintained. Is it true, then, that any right, plainly written in the Constitution, has been denied? I think not. Happily the human mind is so constituted, that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority in any clearly written constitutional right, it might, in a moral point of view, justify revolution — certainly would if such a right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guar- anties and prohibitions, in the Constitution, that controver- sies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate, nor any document of reasonable length contain, express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution docg not expressly say.
From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative; for continuing the Government is acquiescence on one side or the other.
If a minority in such case will secede rather than acqui- esce, they make a precedent which in turn will divide and ruin them; for a minority of their own will secede from them
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whenever a majority refuses to be controlled by such mi- nority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.
Is there such perfect identity of interests among the States to compose a new Union as to produce harmony only, and prevent renewed secession?
Plainly, the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does, of necessity, fly to anarchy or to despotism. Una- nimity is impossible ; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.
I do not forget the position, assumed by some, that con- stitutional questions are to be decided by the Supreme Court ; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the can- did citizen must confess that if the policy of the Govern- ment, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases
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properly brought before them, and it is no